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MICHAEL SELINSKY vs. BOARD OF CHIROPRACTIC, 88-003559 (1988)
Division of Administrative Hearings, Florida Number: 88-003559 Latest Update: Oct. 17, 1988

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, Michael Selinsky, was a candidate for the chiropractic examination given in November of 1987. The practical examination is composed of three portions, X-ray interpretation, technique and physical diagnosis, and a score of 75% must be achieved on all three subject areas in order to pass. The petitioner received a score of 77.1 on the X-ray interpretation area, a score of 77.5 on the technique area and a score of 72.5 on the physical diagnosis area. In this proceeding, petitioner challenges two of the scores he received on the examination in the area of physical diagnosis. The physical diagnosis portion of the examination consists of oral questions posed to the candidate by two examiners. The answers are graded on a scale of 1 to 4, with 4 being the highest grade. Petitioner challenges the grade of 3 one of the examiners gave him for the "neurological" portion of the exam and the grade of 2 another examiner gave him for the "X-ray technique & diagnosis" portion of the examination. On these two areas of the examination, Examiner number 14 awarded petitioner a grade of 3 on both areas. Examiner number 23 awarded petitioner a grade of 4 on the "neurological" portion anal a grade of 2 on the "x-ray technique & diagnosis" portion. During the neurological section of the oral examination, petitioner was requested to demonstrate upon a live model how he would test the extensor hallicus longus muscle for the L-5 mytome. In response, he extended the great toe in the wrong direction. In responding to a question concerning an upper motor neuron lesion and a lower motor lesion, petitioner's answers were very incomplete. During the X-ray technique portion of the oral examination, petitioner was requested to demonstrate with a live model how he would position a patient for a lateral shoulder x-ray. The petitioner responded that he had never heard of such a position, but then attempted to position the patient. In fact, there is no way to take an x-ray of the lateral shoulder view because two bones would be superimposed. While this might be viewed as a "trick" question, petitioner should have been aware that no such x-ray could be taken. During another x-ray positioning question, petitioner failed to turn the patient's head. Also, during the X-ray technique portion of the oral examination, petitioner was asked to identify three factors that affected his exposure to radiation as an operator. The petitioner's answer included such things as lead- lined booths, lead-lined walls in the x-ray room and proper film developing to decrease the number of retakes. Several times, the examiners asked him questions regarding his answers, and the petitioner responded that he was not sure. When considering an operator's safety with regard to radiation exposure, there are three fundamental and established factors to take into account: time of exposure, distance and shielding. The petitioner's answers had relevance to patient safety, but not to the safety of the operator. In spite of prodding and grilling by the examiners with regard to operator safety, petitioner was unable to elucidate the three fundamental factors of radiation safety.

Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition be DISMISSED. Respectfully submitted and entered this 17th day of October, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 17th day of October, 1988. COPIES FURNISHED: Copies furnished: William A. Leffler, III, Esquire Bruce D. Lamb, General Counsel Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750 Michael Selinsky Pat Guilford, Executive 5259 Wayside Court Director Spring Hill, Florida 34606 Board of Chiropractic Examiners Lawrence A. Gonzalez, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750

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DAVID SANDERS vs BOARD OF CHIROPRACTIC EXAMINERS, 92-002709 (1992)
Division of Administrative Hearings, Florida Filed:Melbourne, Florida May 04, 1992 Number: 92-002709 Latest Update: Oct. 30, 1992

The Issue The central issue in this case is whether Petitioner should be granted additional credit for the responses given during his practical examination for licensure which was conducted during November, 1991, and for which Petitioner entered this challenge.

Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner, David Sanders, is a candidate for chiropractic licensure. His candidate for licensure number is 200142, and he took the November, 1991, practical examination administered by the Department. Petitioner received a score of 64.0 on the practical examination. Petitioner's score fell below the minimum score for passing, 75.0. Petitioner timely challenged the examination results and claimed that the Department had incorrectly graded Petitioner's responses and performance during the examination. In this case, the practical examination was administered by two examiners who, independently of one another, scored the responses given by Petitioner when presented with two case studies. For Case 1, the scoring was divided into fourteen sections or subsections where the candidate was evaluated and given points based upon the responses given. For the orthopedics section of Case 1, the Petitioner was given a scenario of facts from which he was to determine the appropriate tests to be administered to the patient. Following selection of the tests to be given, Petitioner was required to perform the test. For an inappropriate test, no points were awarded, even if the candidate performed the test correctly. Of the nine tests listed, four were to be chosen and performed. One point was awarded for each appropriate test correctly performed. In response to the orthopedics section, Petitioner selected three appropriate tests to perform. Consequently, the maximum grade, per examiner, he could have received was a score of three. Petitioner received a score of two from one examiner, and a three from the other. The first examiner commented that the Yeomans test was wrong. Since Yeomans was an appropriate test to perform, and Petitioner correctly performed the test, Petitioner should have received a three on that section from that examiner. Under the neurological subsections of Case 1, Petitioner was required to identify, based upon the fact scenario given, four muscles which should be examined and tested. Petitioner only identified three relevant muscles. Consequently, he received a score of three from each examiner. The scoring on this subsection was correct. Under subsection 8 of the neurological portion Petitioner received no credit as he failed to select three appropriate tests and correctly interpret the responses. Accordingly, the scoring on this subsection was correct. The final subsection of the neurological portion was the diagnosis rendered based upon all the findings of the scenario and test results. Since Petitioner rendered an inappropriate diagnosis, no points were awarded. The scoring on this subsection was correct. Case 2 of the physical examination contained nine sections or subsections for which Petitioner could have received credit. The first section of Case 2 required Petitioner to obtain a history from the patient. To achieve a perfect score on this section, the candidate had to inquire into seven or more areas of relevant history. If so, the score for the section would be a four. In this case, Petitioner should have received a four from both examiners regarding the history taken. As it was, Petitioner only received a three from the examiners. In order to receive credit on the physical-selection portion of the test, Petitioner was required to auscultate the heart and lungs, and purcuss the chest. Since he failed to do so, the scoring on this subsection was correct. In connection with subsections 18 and 19 of Case 2, Petitioner failed to receive full credit because he did not indicate an appropriate laboratory test. Had Petitioner requested a SMAC test, full credit would have been given for both subsections. As it was, because Petitioner failed to request a SMAC test, he could not receive credit on either subsection. The scoring on these subsections was correct.

Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Chiropractic Examiners enter a final order changing Petitioner's score on the November, 1991, physical examination as noted above in order to recalculate and determine whether or not Petitioner failed the examination through no fault of his own. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1992. APPENDIX TO CASE NO. 92-2709 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: With regard to paragraph 1, with the deletion of the words "on physical diagnosis" in sentence 1, the paragraph is accepted. Paragraph 2 is accepted. Paragraph 3 is rejected as contrary to the weight of the evidence. Paragraph 4 is accepted. Paragraphs 5 through 9 are accepted. COPIES FURNISHED: David Sanders 359 Glenwood Avenue Satellite Beach, Florida 32937 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Chiropractic Examiners 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792

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STEVEN FRANK vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 94-001440 (1994)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Mar. 17, 1994 Number: 94-001440 Latest Update: Oct. 20, 1994

Findings Of Fact Steven Frank (Petitioner) is legally incompetent and his adoptive father, Edward Frank, is his guardian. At the time of the hearing, Petitioner, a 37-year-old male, was a patient at South Florida State Hospital 1/ in West Palm Beach, Florida, on a unit for persons who have been dually diagnosed with developmental disabilities and mental illness. At the facility he is receiving treatment for his mental illness. He has not been given an IQ test since being admitted. As a child, Petitioner was determined to be mentally retarded. Before he was eight years old, Petitioner had been given IQ tests on several occasions, and his IQ ranged from 52 (moderate mental retardation) to 58 (mild mental retardation). At age eight, he tested at 68 (mild mental retardation). As a teenager, Petitioner began to receive psychiatric treatment. Around the age of seventeen, he began to have violent outbursts. Throughout his adult life, Petitioner has received psychiatric treatment at a number of facilities. At some of the facilities, his IQ was tested. In 1983, around the age of twenty-seven, Petitioner was a psychiatric patient at Sharon General Hospital. He was given an IQ test and tested at 72, which equated to general intellectual functioning in the borderline range. In late 1986, Petitioner was admitted to Jackson Memorial Hospital in Miami, Florida, for diagnosis purposes to determine if alternative treatment would be beneficial. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. In 1987, around the age of thirty-one, Petitioner was a psychiatric patient at Montanari Residential Treatment Center, a residential treatment facility in Hialeah, Florida. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. Petitioner was diagnosed, among other things, as being a chronic, residual schizophrenic and as having borderline intellectual functioning and pervasive developmental disorder. He also showed signs of organic brain damage. In 1989, Petitioner was discharged from Montanari, even though there was no improvement in his condition, because of the decision by Developmental Services of the Department of Health and Rehabilitative Services (Respondent) to place Petitioner in a group home setting. In 1987, Petitioner was determined eligible for the Developmental Services Program by Respondent's District XI, the Dade County area, even though he tested 75 on the IQ test. Petitioner has not been given an IQ test since 1987. The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is as follows: Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effective- ness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset is before age 18 years. Code based on degree of severity reflecting level of intellectual impairment: 317 Mild Mental Retardation: IQ level 50-55 to approximately 70 Moderate Mental Retardation: IQ level 35-40 to 50-55 Severe Mental Retardation: IQ level 20-25 to 35-40 Profound Mental Retardation: IQ level below 20 or 25 319 Mental retardation, Severity Unspecified: when there is strong presumption of Mental Retardation but the person's intelligence is untestable by standard tests On the IQ tests there is a three-point margin of error. In determining an individual's eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. In making determinations regarding mental retardation, Respondent does not consider IQ test results prior to age nine because such tests results are not considered reliable for placing a child. Environmental factors may interfere with test results and labeling children as mentally retarded may interfere with the child receiving an appropriate education. The basis for placement is clinical judgment. At the request of Respondent's District IX, the Palm Beach County area, in October 1993, while a patient in the psychiatric unit at the University Medical Center in Jacksonville, Florida, a psychological evaluation of Petitioner was performed. The purpose of the evaluation was to assist District IX in determining Petitioner's eligibility for its Developmental Services Program. The evaluation was completed in one day with no intelligence testing being performed due to Petitioner's mental condition at that time. 2/ The psychologist reviewed Petitioner's past records, observed Petitioner, and interviewed staff. She determined that Petitioner was not mentally retarded based upon him testing at 72 and 75 on the IQ tests previously administered as an adult, which was beyond his developmental years, and that he was, therefore, not eligible for Respondent's Developmental Services Program. Respondent's evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner's adaptive functioning. At the request of Petitioner's parents, in January 1994, a psychological examination was performed on Petitioner, while he was a patient at South Florida State Hospital, by a psychologist. The examination occurred over several occasions, on different days and at different times of the day. Additionally, Petitioner's records were examined and interviews of the hospital staff on Petitioner's unit and his parents were conducted. Again, no IQ test was administered. The psychologist's diagnosis was consistent with that expressed by South Florida State Hospital: Petitioner suffered from both developmental disabilities and mental illness. The psychologist determined that Petitioner was eligible for Respondent's Developmental Services Program and for psychiatric services. Petitioner's IQ results in his late twenties and early thirties should be evaluated from the lower tested result, i.e., at 72, and the margin of error should be placed at the lower, not the higher, spectrum. The lower tested result now becomes 69. Petitioner has a significant delay in social/adaptive skills and has deficits or impairments in adaptive functioning in the following areas: communication, self-care, home living, social/interpersonal skills, self- direction, work, leisure, health, and safety. His strong area is functional academic skills. Petitioner has both developmental and psychiatric needs. One need is not more important than the other; Petitioner requires assistance in both. An intermediate care facility for the mentally retarded is best suited to address Petitioner's dual needs. Respondent's Developmental Services Program is not an entitlement program. Even though an individual may be eligible for the Program, the individual may not be admitted to the program if funds are not available. There is no dispute regarding the onset of Petitioner's condition before eighteen years of age.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order declaring Steven Frank eligible for the Developmental Services Program and placement in the intermediate care facility for the mentally retarded. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of October 1994. ERROL H. POWELL 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 20th day of October 1994.

Florida Laws (2) 120.57393.063
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BOARD OF OPTOMETRY vs. JON F. STONEBURNER, 86-004103 (1986)
Division of Administrative Hearings, Florida Number: 86-004103 Latest Update: Oct. 24, 1988

Findings Of Fact Introduction The Respondent, Jon F. Stoneburner, O.D., is a licensed optometrist in the State of Florida, and has been so licensed since January, 1977. On November 7, 1985, Alison Lichtenstein and Mary Pfab, O.D., went to the office of the Respondent, Jon F. Stoneburner, O.D., for eye examinations. Both used fictitious names. Ms. Lichtenstein presented herself as Alison Smith, and Dr. Pfab presented herself as Mary Parker. During the visual analysis by Dr. Stoneburner of Ms. Lichtenstein, Dr. Pfab was seated six to eight feet away. T2. 43. Dr. Stoneburner's back was facing Dr. Pfab, and she was viewing the examination of Ms. Lichtenstein from an angle. T2. 41. On the diagram drawn by Dr. Pfab, Dr. Pfab was seated in the position marked either 1 or 2, Dr. Stoneburner was located at the position marked St., and Ms. Lichtenstein was seated in the chair which is marked C. R. Ex. 3; T2. 40. Located in the room was a stand, a Phoropter, a biomicroscope, a keratometer, a retinoscope, and a tangent screen. T2. 40, 42. It is normal for such equipment to be placed on either the right or left side of the examination chair. T2. 43. It is concluded that some of this equipment was to one side or the other of the examination chair in which Ms. Lichtenstein was seated, but the actual positioning of the equipment is not in evidence in this record. T2. 41- Although the equipment may have been to the left or right of the examination chair, from the diagram it is evident that placement of the equipment to either the left or right side would not have obstructed Dr. Pfab's vision of Dr. Stoneburner and Ms. Lichtenstein since Dr. Pfab was seated on an angle behind Dr. Stoneburner. R. Ex. 3. From the diagram drawn and Dr. Pfab's testimony, it is concluded that Dr. Pfab was unable to clearly see Dr. Stoneburner's examination of Ms. Lichtenstein with respect to placement of Dr. Stoneburner's hands very close to Ms. Lichtenstein's face, i.e., one or two inches away from Ms. Lichtenstein's face, since Dr. Pfab's vision of such movements would have been partially blocked by Dr. Stoneburner's body. Other than that blind spot, Dr. Pfab could clearly see Dr. Stoneburner's movements during the examination, and could hear everything he said. T2. 43-44. Dr. Pfab received a degree in optometry in 1985. T. 10. At the time of the examination by Dr. Stoneburner, Dr. Pfab had had an externship in Jacksonville, Florida, and Fort Lee, Virginia, and was a licensed optometrist in Tennessee. T. 10-11. During her externships, she was required to perform eye examinations that conformed to the requirements of rule 21Q- 3.007, Fla. Admin. Code. T. 11. Dr. Pfab was licensed as an optometrist in Virginia and North Carolina in 1986, and in Florida in 1987. T. 11. Dr. Pfab was tendered as and accepted as an expert witness in the practice of optometry in Florida. T. 12, 16-18. In the first day of the formal hearing, the Hearing Officer sustained an objection to the testimony of Dr. Pfab to the extent that it involved her work for the Petitioner as an investigator. Following the close of the hearing, the Hearing Officer on his own motion determined that this ruling was in error, and reopened the record to allow Dr. Pfab to testify as to the results of her investigation on behalf of the Petitioner. That portion of the reopened hearing was conducted on August 31, 1988. Ms. Lichtenstein was not accepted as an expert with respect to the minimum examination procedures in the practice of optometry in Florida. T. 47, 50-51. She was allowed, however, to testify as a lay witness to what she perceived in the course of her investigation conducted on behalf of the Petitioner. Following the November 7, 1985, visit of Dr. Pfab and Ms. Lichtenstein, Ms. Judith Leff interviewed the Respondent and obtained copies of the records of the examinations of Dr. Pfab and Ms. Lichtenstein. T. 65. Ms. Leff asked Dr. Stoneburner to show her in the records of each patient where each of the minimum procedures listed in the rule had been recorded as having been performed, and Dr. Stoneburner showed Ms. Leff in both records where there was an entry that each procedure had been performed. T. 74. The patient records that are at issue in this case, P. Exs. 5 and 6, were not signed by Dr. Stoneburner in his capacity as a licensed practitioner of optometry, and Dr. Stoneburner's signature on these patient records was not required by law. It is normal practice in optometry for an optometrist to improvise and devise his or her own techniques for performing the minimum examination procedures. T. 92, 95. The visual fields or confrontation fields test A visual fields test tests the retina and the nerve pathways to the brain. T. 84. A visual fields test is a check for a brain tumor, and particularly a pituitary tumor. T2 -22. A visual fields test is required as a part of a minimum eye examination by an optometrist in the State of Florida. A minimum visual fields test is a confrontation fields test. T. 28, 80. In the confrontation fields test, the patient covers one eye with an opaque object, commonly a paddle. The patient is then asked to focus the other eye upon an object held by the examiner. The patient is required to tell the examiner when he or she can see the object moving into his or her peripheral vision. The examiner then moves a second object from beyond the peripheral vision of the patient from both horizontal sides (left and right) and from both vertical sides (up and down). The examiner observes that the patient continues to focus upon the target object. A confrontation fields test necessarily involves communication from the patient to the optometrist. T. 20-21,80-81, 124, 164, 185. The movements necessary to conduct a confrontation fields test (movement of paddles, movement of objects to the right and left sides of and above and below the patient's head) would have been visible to Dr. Pfab seated behind Dr. Stoneburner, and would not have been blocked by his body or equipment. Dr. Pfab, of course, could easily have observed these movements during her own examination. Dr. Pfab could have heard Dr. Stoneburner communicating with Ms. Lichtenstein during the confrontation fields test had he done so, and certainly would have observed Dr. Stoneburner communicating with her during her own examination. Neither Dr. Pfab nor Ms. Lichtenstein had any handicap or other impediment that would make normal voice communication not feasible between either of the two patients and Dr. Stoneburner. T. 189. Other forms of visual fields tests are more complicated and involved than a confrontations fields test. There is no evidence in this record that Dr. Stoneburner used any other more complicated test. Dr. Stoneburner could not remember whether he did a confrontation fields test on Ms. Lichtenstein by moving objects in and out of her peripheral vision and communicating with her concerning what she saw. T. 180. He did not testify that he performed any other specific form of confrontation fields test on Ms. Lichtenstein. He asserted, however, based upon his written record that some form of visual fields testing was done. T. 181. At no point during the examination did Dr. Stoneburner ask Ms. Lichtenstein if she could see his fingers or any other object moving or to look straight ahead at any object. T. 56-57. At no point during the examination did Dr. Stoneburner stand in front of Ms. Lichtenstein and bring an object into and out of view or ask her to line up objects horizontally and vertically. T. 59. Ms. Lichtenstein moved her eyes, as one normally does, as she entered the room and while she was in the examination room. T. 62. Observation of a patient as he or she walks and avoids obstacles gives the optometrist some indication as to the visual field of the patient. It is not an adequate confrontation fields test. The expert who testified as to this issue was asked on two occasions whether mere observation of a patient walking would constitute an adequate visual fields test, and he failed to answer except to imply that such observation would be a partial visual fields test. R. Ex. 2, pp. 15-17. It is concluded that observation of a patient as he or she walks and avoids obstacles is not an adequate visual fields test. Ms. Lichtenstein could have observed Dr. Stoneburner moving equipment within the room, but Dr. Stoneburner did not ask her the extent to which she saw the equipment move. T. 64. Without such communication, the movement of equipment is not an adequate visual fields test because Dr. Stoneburner would have had no way to know the extent to which Ms. Lichtenstein saw such movement. Dr. Stoneburner did not perform a visual fields or confrontation fields test on Ms. Lichtenstein. T2. 19. Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Ms. Lichtenstein, however, and Ms. Lichtenstein's patient record has an entry indicating that a confrontation fields test was done. T2. 19; P. Ex. 5. Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Dr. Pfab, and Dr. Pfab's patient record has an entry that indicates that a confrontation fields test was done, but Dr. Stoneburner did not perform a confrontation fields test on Dr. Pfab. T2. 25-26; P. Ex. 6. The pupillary examination A pupillary examination is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27. A pupillary examination is useful to detect brain tumors, diabetic conditions, retinal detachment, temple arteritis, optic neuritis, and other diseases. T. 82; T2. 21-22. There are three parts to a pupillary examination: direct, consensual, and accommodative. T. 79. In the direct pupillary examination, the doctor observes if the pupils are the same size and shape. T. 25. The eye is then approached from about 12 inches away with a light such as a penlight, and if the pupil constricts, a normal response is recorded. In the consensual pupillary examination, the light from 12 inches is moved to the opposite eye, and the response of the first eye is observed. T. 79, 26, 34, 123. Additionally, the light is swung back and forth from eye to eye from about 12 inches to check for Marcus Gunn pupil defect. T. 26, 34. The accommodative pupillary examination is performed by having the patient focus in the distance; the patient then is asked to look at a close object, with the eyes crossed, and the reflex of the pupils is observed. T. 80. A pupillary examination is performed in dim illumination. T. 25; T2. 21, 44-46. The actions of a doctor performing a pupillary examination are very obvious to an observer familiar with the nature of such an examination. The exam is not difficult to see as it occurs. T2. 36. The movements of hands and oral communication necessary to conduct a pupillary examination on Ms. Lichtenstein (movement of a light back and forth from a distance of 12 inches and communicating with the patient to ask the patient to focus in the distance and then to focus at a close object) involve activities that Dr. Pfab could have clearly perceived from where she was seated behind Dr. Stoneburner. Dr. Pfab clearly could have observed and heard these same actions during her own examination. It is irrelevant that she could not observe the results of the examination. T2. 44. Dr. Stoneburner stated to investigator Leff that he normally performed the external examination and the pupillary examination during the biomicroscopy (slit lamp) examination, and that he normally also performed the external examination during the ophthalmoscope examination. T. 68. In direct testimony, however, Dr. Stoneburner testified that he normally does the external examination and the pupillary examination with his penlight. T. 169. He also stated that he did these examinations right after (or during) the visual acuities test. T. 169. He testified that he generally does the visual acuities test, but he assumed that his staff did it on Ms. Lichtenstein and Dr. Pfab, though he was unclear on the point. T. 168, 183. There is no evidence that Dr. Stoneburner used a pen light to examine either Ms. Lichtenstein or Dr. Pfab. Later in his testimony, Dr. Stoneburner testified that he did the pupillary examination in three ways. The first was by "sweeping of the pencil while they're watching the chart . . . ." T. 173-74. The second was during the slit lamp observation. T. 174. And the third was with the ophthalmoscope. T. 174. During the examination of Ms. Lichtenstein, Dr. Stoneburner did not shine the light of the opthalmoscope into either of her eyes from a distance greater than one inch. T. 52- 53. Dr. Stoneburner did not stand in front of her and shine a light into either of her eyes. T. 59. Dr. Stoneburner testified that he felt he could do a direct pupillary examination with a slit lamp, but admitted that a consensual pupillary examination is often not done with a slit lamp. T. 175. Since the slit lamp is so large and heavy, it is unsuitable to use for a consensual pupillary examination because it is so difficult to move the slit lamp back and forth. T2. 31-32. Moreover, the slit lamp fits directly against the face, and has a chin rest, making such gross movements improbable. T. 143. In the examination of Ms. Lichtenstein and of Dr. Pfab, Dr. Stoneburner did not swing the biomicroscope (slit lamp) from eye to eye. T. 60; T2. 64. Dr. Stoneburner did not conduct a pupillary examination upon either Ms. Lichtenstein or Dr. Pfab, T. 59-60, T2. 17, 20-21, 27, 30, but the notation "normal" for the direct and consensual pupillary test ("pupils D & C") was entered on the charts of both Ms. Lichtenstein and Dr. Pfab. P. Exs. 5 and 6; T2. 30. The extra ocular muscle balance test An extra ocular muscle balance test is one of the minimum procedures that must be performed by an optometrist during vision testing in the State of Florida. T2. 16-17, 23. The purpose of the extra ocular muscle balance test is to check for the existence of binocular vision (use of both eyes) and the neurological integrity of the eye muscles. T2. 64. From notations in Ms. Lichtenstein's record, Dr. Stoneburner believed that the extra ocular muscle balance test was performed on Ms. Lichtenstein. T. 181-82. Relying upon notations on the chart, since he had no memory on the subject, he concluded that a stereo fly test and depth perception fusion tests had been performed on her, and that these tests assessed extra ocular muscle balance. Id. He noted in particular that "No. 8," which is the place on the chart for recording phorias, was "ortho" or normal. Ms. Lichtenstein's record shows the notation "0" for phorias No. 8. P. Ex. 5. He also noted that there was a negative (abbreviated "ng") notation on her record for the cover test. Observation of a person moving his or her eyes around the room from across the room is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 78. One form of extra ocular muscle balance test is a cover test. The test is performed with the patient focusing upon a distant object and a near object. In both cases, the optometrist covers and uncovers the one eye several times, watching the movement of the eye that is not being covered. Then the other eye is tested in the same way. Finally, the object used to cover the eye is moved back and forth to cover one eye and then the other, and the movement of the uncovered eye as it is uncovered is observed. Thus, the cover test has four parts. T2. 20; T. 126. Only one fourth of a cover test can be performed during a visual acuity test. T. 31, 34-35. Thus, an extra ocular muscle balance test cannot be done by an acuity test. T2. 37. A stereo acuity test is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 64, 38. Phorias is a form of extra ocular muscle balance test. T2. 30. Phorias are a measurement of the alignment of the eyes. T2. 29. The patient's eyes are disassociated with prisms, and the patient is asked to align the image from each eye vertically and horizontally. Id. Although there is a notation in her record (the symbol O) that phorias were performed on Dr. Pfab, Dr. Stoneburner did not perform that procedure upon her. P. Ex. 6; T2. 29. Dr. Pfab certainly would have observed if Dr. Stoneburner had disassociated her eyes with prisms. The movements necessary to perform a cover test (covering and uncovering an eye) would have been clearly seen by Dr. Pfab from where she was sitting behind Dr. Stoneburner. Dr. Stoneburner did not perform a cover test or extra ocular muscle balance testing on Dr. Pfab, but he called out tests results for a cover test, and those results were recorded on Dr. Pfab's chart by the notation "ng." T2. 25, 27, 29; P. Ex. 6. Dr. Stoneburner did not perform an extra ocular muscle balance test or a cover test upon Ms. Lichtenstein, but he did call out results of a cover test for recording on Ms. Lichtenstein's chart, and those results were recorded on Ms. Lichtenstein's chart by the notation "ng." T2. 20, 23; P. Ex. 5. The tonometry test A tonometry test is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27. Dr. Stoneburner had an air-puff tonometer in his office, but not in the room he used to examine Ms. Lichtenstein and Dr. Pfab. T2. 27, 42. Dr. Stoneburner has delegated the tonometry examination to a non- optometrist member of his staff. T. 133. Dr. Pfab wore hard contact lenses during her visit to Dr. Stoneburner. P. Ex. 6. Dr. Stoneburner determined to not perform tonometry testing on Dr. Pfab because he determined that he needed her records to be able to do a proper test because she wore hard contact lenses. T2. 83. Dr. Stoneburner noted in Dr. Pfab's patient record that he would perform tonometry on her next visit. P. Ex. 6. Dr. Pfab was not told that she needed to return for tonometry testing. T2. 28. Prior disciplinary action By order dated January 30, 1984, Dr. Stoneburner paid $500.00 in costs to settle disciplinary case number 31308, but neither admitted nor denied the charges brought against him. The case ended by settlement, and Dr. Stoneburner was not represented by a lawyer. The charge is accurately represented in P. Ex. 9 and concerned the allegation of practice under a trade name. "The Eye Center," and thus the allegation of engaging in the practice of optometry with unlicensed persons.

Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Optometry, enter its final order finding that Jon F. Stoneburner, O.D., committed the violations alleged in counts one, two, and three, of the administrative complaint, and imposing an administrative fine of $4,000 and probation, upon such conditions as the Board may direct, for 12 months. DONE and ENTERED this 24th of October, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 24th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4103 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Statements of fact in this appendix are hereby adopted as additional findings of fact in this recommended order. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: 1-2. These proposed findings of fact are not supported by the record. Dr. Pfab was not tendered as an expert consultant or investigator, but as an expert in the practice of optometry. T. 12, 16. The Hearing Officer's initial ruling to exclude Dr. Pfab's testimony was limited to her role as an investigator, not as an expert as tendered; Dr. Pfab was at all times in this case accepted as an expert as tendered. T. 17-18. The Hearing Officer subsequently determined that this initial ruling, a ruling that precluded testimony, but was not based upon lack of expertise, was in error since the employment rule of the Petitioner was not intended to preclude testimony in a hearing. Rejected as explained in findings of fact 3-5, 17-18, 33, and 54. It appears from the record that in the March 16, 1986, statement, Dr. Pfab stated that a pupillary test was not obviously done, and visual testing was not done. T. 32-33. Since some "visual testing" was in fact done, it is inferred by the wording of the question that "visual testing" here means visual fields testing. The records clearly indicate that tonometry was not performed on Dr. Pfab. Thus, the only relevant question is whether Dr. Pfab omitted the extra ocular muscle balance test in her March 16, 1986, statement, and if she did, whether her credibility was impaired. The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. Thus, the context of her statement is unknown. Absent some further evidence as to the context and circumstances surrounding the making of the March 16, 1986, statement, a finding of a lack of credibility of Dr. Pfab cannot be made based upon the foregoing, particularly in light of her credible demeanor during cross examination. The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. There is no other evidence in the record as to Dr. Pfab's characterization of the lack of performance of the pupillary examination on either herself or upon Ms. Lichtenstein in the March 16, 1986, statement in this record. Thus, a finding of "great discrepancy" between that statement and testimony with respect to the pupillary exam is not supported by the record evidence. There was some cross examination concerning Dr. Pfab's statement in her November 8, 1985, report (also which is not in evidence) that the pupillary exam was "not obviously done," but that had nothing to do with the March 16, 1986, statement. Moreover, Dr. Pfab credibly explained that a pupillary exam, when performed, would be obvious. T2. 36. This proposed finding of fact is not supported by the evidence of record. The proposed finding of fact fails to identify the nature of the "major differences," or to cite to the record. The observations of Ms. Lichtenstein were observations to which any competent lay witness could testify, and added credence to the testimony of Dr. Pfab. This proposed finding of fact is irrelevant since Ms. Leff was simply presented with Dr. Stoneburner's false records. Her conclusion is limited to her conversations with Dr. Stoneburner on April 9, 1986. R. Ex. 1; T 65-74. 14, 16-19, 21, 22, 25, 26. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 20. Dr. Kantor's testimony was too vague to constitute a contradiction of Dr. Pfab's testimony. Dr. Kantor only described bits and pieces of the minimum tests that might be used. He never explicitly described or defined an adequate test. For example, he acknowledged that a pupillary examination might involve consensual light reflex and direct light reflex, R. Ex. 2, p. 7, but failed to explain how consensual light reflex might be tested with a slit lamp. Dr. Pfab, on the other hand, testified that swinging the slit lamp back and forth would be very awkward, very obvious, and was not done by Dr. Stoneburner. 23. Dr. Shewmaker's description of the pupillary examination, and the movement needed if the biomicroscope was used, was essentially the same as Dr. Pfab's. T. 117, 122, 123. Dr. Shewmaker's description of the movements needed to perform the procedure and need for communication in the visual fields test was essentially the same as Dr. Pfab's. T. 117, 124. Dr, Shewmaker's description of the cover test was essentially the same as Dr. Pfab's. T. 125. To the extent that Dr. Shewmaker testified that a cover test can be done during a visual acuity test, that opinion, having not been explained, is rejected in favor of Dr. Pfab's explanation to the contrary. T. 24-25, 34- 35. Thus, Dr. Shewmaker is not found to be a "more credible witness" than Dr. Pfab. A comparison to Ms. Lichtenstein is irrelevant. Ms. Johnson's description of the pupillary examination was incomplete, and thus it cannot be concluded from her testimony that she observed a minimally adequate pupillary examination. T. 140. Ms. Johnson could not testify that a visual fields test was in fact performed. T. 140-41. Ms. Johnson testified that Dr. Stoneburner performed the extra ocular muscle balance test upon Ms. Lichtenstein using the Phoropter, T. 142, but there is no credible evidence in the record to sustain a finding that an adequate extra ocular muscle balance test can be performed with a Phoropter. Ms. Johnson was not qualified as an expert to express an opinion as to what the minimum requirements are. This proposed finding of fact is true, since that is Dr. Stonburner's testimony, but further findings of fact have not been made from the testimony due to clear and convincing evidence to the contrary. The records from which this proposed finding of fact must be made were not identified by competent evidence as including a record of examination by another doctor; the only indication come from the assertions of counsel, and there is no stipulation of fact in the record precisely explaining the nature of the records. R. Ex. 2, p. 12, lines 6-7, p. 18, lines 5-7. Moreover, the testimony indicates that the witness performing the record comparison was too unfamiliar with the forms to develop a credible opinion. R. Ex. 2, pp. 12-15, 18-20, especially p. 12, lines 23-24 and p. 20, lines 13-17. This proposed finding of fact is actually a conclusion of law, and has been rejected for the reasons stated throughout this recommended order. The second half of this sentence is rejected as contrary to the clear and convincing evidence of record. 32, 33 and 35. These proposed findings of fact have been rejected as contrary to the clear and convincing evidence of record. 34. The Respondent did not keep a written record of the failure to perform the three minimum tests upon Ms. Lichtenstein and Dr. Pfab. COPIES FURNISHED: Thomas W. Stahl, Esquire Phillip Miller, Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Robert J. Elkins, Esquire 46 North Washington Street, Suite 12 Sarasota, Florida 33577 Mildred Gardner, Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 ================================================================= AGENCY ORDER REJECTING MOTION FOR REHEARING ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Petitioner, vs. CASE NO. 86-4103 JON F. STONEBURNER, O.D., Respondent. /

Florida Laws (1) 463.016
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ROBERT V. CARIDA, M.D., 99-002997 (1999)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Jul. 12, 1999 Number: 99-002997 Latest Update: Aug. 21, 2000

The Issue Whether the Respondent committed the violations set forth in the Administrative Complaint dated November 2, 1998, and, if so, the penalty which should be imposed.

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: The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida. Sections 20.43 and Chapters 455 and 458, Florida Statutes (1997). Dr. Carida is, and was at the times material to this proceeding, a physician licensed to practice medicine in Florida, having been issued license number ME 0019622. Dr. Carida is board-certified in cardiology and internal medicine and has practiced non-invasive cardiology since 1973. Dr. Carida has not attended patients in the hospital since 1989 because of his own health problems. It is, and has been, Dr. Carida's practice to place his hospitalized patients under the care of another cardiologist or a physician practicing in the appropriate specialty. In April 1994, R.M. was a 72-year-old man who had a medical history significant for insulin-dependent diabetes mellitus, alcohol abuse, chronic obstructive pulmonary disease, peptic ulcerative disease, obesity, prostate cancer, and clinically insignificant coronary artery disease. He had been Dr. Carida's patient since approximately 1986. J.M., R.M.'s wife, called Dr. Carida on March 19, 1994, and reported that R.M. was bleeding. Dr. Carida told J.M. to take her husband to North Broward Medical Center. Dr. Carida saw R.M. in the emergency room and explained to J.M. and R.M. that he would not be attending R.M. in the hospital. Dr. Carida advised them that Dr. Stephen G. Sackel, a gastroenterologist, would be caring for R.M. during his hospital stay. R.M. was admitted to the North Broward Medical Center by Dr. Sackel on March 19, 1994, with the diagnoses of insulin- dependent diabetes out-of-control, GI (gastrointestinal) bleeding and anemia, coronary artery disease with chest pain, and obesity. Based on R.M.'s medical history and physical examination in the emergency room, Dr. Sackel called in Dr. Salvatore DiGiorgi, a cardiologist, for a consultation. R.M. was discharged from the North Broward Medical Center on March 29, 1994, by Dr. Sackel with a discharge diagnosis of anemia secondary to gastrointestinal bleeding, chest pain, emphysema, diabetes, gastritis, history of ischemic heart disease, and obesity. Dr. Sackel noted in his discharge summary that R.M. had a Cardiolite stress test, which is a very sensitive stress test, while he was hospitalized because R.M. complained of chest pains, that the test results were within normal limits, and that the test results were negative for ischemia. Upon R.M.'s discharge from the hospital, Dr. Carida referred R.M. to a home health agency, although the instructions provided to the agency were based on Dr. Sackel's discharge orders, and the medications R.M. took after his discharge on March 29, 1994, were those ordered by Dr. Sackel. Additionally, Dr. Sackel and his partner, Dr. Paul Quentzel, were identified on the home health agency's treatment plan as physicians who could write orders for R.M. The home health nurse visited R.M. on March 30, March 31, April 1, April 4, April 6, and April 8, 1994. The nurse's notes show that R.M.'s temperature ranged from 97.1 to 98 degrees; that, on April 1, 1994, R.M. reported that his stool was brown/black; that on the other days he was visited by the home health nurse, he reported that his stool was soft and brown. R.M. generally did not feel well after his discharge from the hospital on March 29, 1994. On April 11, 1994, Dr. Carida was told by one of his staff that R.M. had been scheduled for an appointment that afternoon 1/ When R.M. and J.M. arrived at Dr. Carida's office, Dr. Carida observed them sitting in the waiting room, and he noted that R.M. looked pale and semi-lethargic. R.M. was taken into an examination room by one of Dr. Carida's staff, who noted R.M.'s major complaints on the chart maintained by Dr. Carida as part of R.M.'s medical record: R.M. complained that both his feet were swollen, that he had been up all night for three nights, that he had shortness of breath, and that he had been hot and cold all day. At the time of his office visit, his blood pressure was 140/56, and his temperature was 99.1 degrees. When Dr. Carida examined R.M. on April 11, 1994, R.M. told Dr. Carida that he had experienced shortness of breath for two or three days. Because of this complaint and because R.M. had experienced chest pains during his hospitalization in March 1994, Dr. Carida asked R.M. if he had any chest pain at the time of the office visit on April 11, 1994. R.M. denied having any such pain. Because of R.M.'s fever and shortness of breath and because of the possibility of pneumonitis, Dr. Carida asked R.M. if he had any yellow sputum, which R.M. denied. Dr. Carida also asked R.M. if he had coughed up any blood, and R.M. denied having done so. R.M. did not report any dizziness to Dr. Carida, nor did R.M. indicate that his stool was black. Dr. Carida examined R.M., and the examination of his lungs and his abdomen was negative. Dr. Carida noted a mild systolic murmur, which was consistent with the mitral regurgitation noted in the electrocardiogram ordered by Dr. DiGiorgi during R.M.'s March 1994 hospitalization. Dr. Carida ordered two blood tests, a chemical screen to determine if R.M. had a metabolic problem and a "CBC," or complete blood count, to determine if R.M. was anemic or was developing congestive heart failure and to determine if R.M. had an infection. Blood was drawn for these tests by the phlebotomist working in Dr. Carida's office on April 11, 1994. Pursuant to the usual procedure, the blood test results would be available to Dr. Carida the following morning. Dr. Carida told J.M. to bring R.M. to his office the next day, April 12, 1994, for a chest x-ray, and Dr. Carida gave R.M. a stool card to take home with him and told J.M. to return the card the next day so R.M.'s stool could be tested for occult blood. Dr. Carida also gave J.M. two Lasix tablets, which is a diuretic used to help decrease fluid accumulating in the heart and lungs. Dr. Carida instructed J.M. to give R.M. one Lasix tablet that night and the other the next morning. Even though Dr. Carida suspected that R.M. had an infection on April 11, 1994, his suspicion had not yet been confirmed by blood tests. Consequently, Dr. Carida did not prescribe an antibiotic for R.M. or administer an antibiotic by injection because it would not have been appropriate under the circumstances. Antibiotics can mask an infection without curing it and make it difficult to get a blood culture that accurately identifies the source of the infection. Dr. Carida ordered several other tests for R.M., which were done on April 11, 1994, in his office: Dr. Carida ordered an electrocardiogram, which showed non-specific "ST" changes, which can be caused by a number of conditions, including ischemia, a decrease in blood flow to the heart with a resulting lack of oxygen to the heart muscle. However, Dr. Carida did not believe R.M. had ischemia because the stress test R.M. had taken in March 1994, was negative and because R.M. reported on April 11, 1994, that he had no chest pain. Non-specific "ST" changes can also be an indication of sepsis, an infection, or an electrolyte imbalance. Dr. Carida ordered a pulmonary function test because R.M. was experiencing shortness of breath and had a history of chronic obstructive pulmonary disease. The results showed an accumulation of fluid in the lungs and were consistent with congestive heart failure. Dr. Carida ordered a "2-D" echocardiogram. This test uses sound waves to show the valves and the walls of the heart. The results were generally normal and showed normal ejection fraction, which is an indication that ischemia was not present. The test also showed mild aortic valve disease, but no narrowing of the aortic valve. Dr. Carida ordered a cardiac color doppler, which measures blood flow generally and in the heart specifically. The results were consistent with sepsis and also showed an accumulation of fluid in the heart, which is consistent with developing congestive heart failure. After R.M. returned to the examination room after having these tests, R.M. began exhibiting chills and rigors, which are shaking chills that cause the body to move in a rhythmic fashion. At the time, R.M. was sitting in the examination room wrapped in a blanket. When Dr. Carida observed these symptoms and the pallor of R.M.'s skin, Dr. Carida told J.M. that R.M. should be taken to the emergency room immediately. 2/ J.M. told Dr. Carida that she would not take R.M. to the hospital. Dr. Carida did not document on R.M.'s chart his instruction to J.M. to take R.M. to the emergency room on R.M.'s chart or her refusal to do so. Because he needed to see other patients, Dr. Carida asked his staff to talk with J.M. and to try to convince her to take R.M. to the emergency room. As far as Dr. Carida knew at the time, these efforts were unsuccessful. Sometime between 4:00 p.m. and 5:00 p.m., shortly after she and R.M. left Dr. Carida's office, J.M. called Dr. Carida's office and notified a member of his staff that she was taking R.M. to the emergency room after all. Dr. Carida told the phlebotomist to cancel the blood tests and the chest x- ray he had ordered for R.M., which was done before 5:30 p.m., when the office closed for the day. About 11:00 p.m. on April 11, 1994, Dr. Carida received a telephone call from the emergency room at the North Broward Medical Center notifying him that R.M. had been admitted to the hospital. After being briefed by the person from the emergency room, Dr. Carida told the person to call Dr. Sackel, the gastroenterologist, and Dr. DiGiorgi, the cardiologist, who had both treated R.M. during his March 1994 hospitalization and were familiar with his condition. J.M. was aware as a result of the March 1994 hospitalization that Dr. Carida did not attend patients in the hospital. When R.M. was admitted to the North Broward Medical Center, the admitting diagnosis was gastrointestinal bleeding, and R.M. was given a transfusion. In addition, Dr. DiGiorgi diagnosed congestive heart failure on the morning of April 12, 1994, and prescribed Lasix. R.M. was also given several different antibiotics during his hospitalization, which had no effect on the infection that continued to worsen. J.M. telephoned Dr. Carida on April 14, 1994, and told him that R.M. was confused and appeared mentally unstable. Dr. Carida called R.M.'s nurses at the hospital, who did not know much about his condition. Dr. Carida then telephoned Dr. Sackel and Dr. DiGiorgi, who agreed to evaluate R.M. and call him back. Dr. Sonderling, Dr. Sackel's partner, telephoned Dr. Carida and told him that R.M. had taken a turn for the worse and that he was being transferred to the intensive care unit. On April 14, 1994, the physicians attending R.M. proposed doing additional tests and possibly exploratory surgery in an effort to identify the source of R.M.'s infection. R.M.'s family refused further treatment for R.M. even though they were aware of the possibility that, with surgery, R.M. could have recovered completely. R.M. suffered a cardiopulmonary arrest late in the evening on April 14, 1994, and, although R.M. was resuscitated and placed on life support, he remained comatose. J.M. telephoned Dr. Carida on April 15, 1994, and complained that Dr. Carida had not been to see R.M. since his admission to the hospital on April 11, 1994. As a result, Dr. Carida went to the hospital on April 15 and read R.M.'s chart in the intensive care unit. He was shocked at R.M.'s condition. J.M. was very upset with Dr. Carida, and he did not visit R.M. during the April 15, 1994, visit. On April 15, 1994, the family refused any further intervention for R.M., and he was declared legally dead on April 16, 1994, with final diagnoses including gastrointestinal bleeding and congestive heart failure. The final diagnosis is not necessarily the cause of death, and it appears from the hospital records that, in addition to multiple-system organ failure, R.M. suffered from a catastrophic infection in the abdominal area that was ultimately the cause of his death. The notes made on R.M.'s chart by Dr. Carida documenting his examination and diagnosis of R.M. on April 11, 1994, while sufficient to inform Dr. Carida of the important observations and of his diagnosis, are not legible for the most part, and it is virtually impossible to make out most of the written words and abbreviations even when those words and abbreviations are being read aloud. Dr. Carida's own expert witnesses were unable to read his notes. Summary The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Carida practiced medicine below an acceptable standard of care with respect to the care he provided to R.M. during R.M.'s April 11, 1994, office visit. Even given R.M.'s recent hospitalization for gastrointestinal bleeding, Dr. Carida did not fall below the accepted standard of care by failing to perform an orthostatic test during R.M.'s April 11, 1994, office visit. The orthostatic test assists in determining if a person has gastrointestinal bleeding because it can identify if a person is hypovolemic. 3/ A person with hypovolemia has decreased volume of blood in the vascular space, which would be consistent with gastrointestinal bleeding. First, at the time of his office visit to Dr. Carida on April 11, 1994, R.M. had no symptoms that would indicate that he suffering from clinically significant gastrointestinal bleeding, which symptoms would include vomiting blood, black stools, and low blood pressure. Additionally, the results of the echocardiogram, the pulmonary function test, and the cardiac color doppler test performed in Dr. Carida's office on April 11, 1994, showed an excess of fluid in R.M.'s heart and lungs, which is consistent with congestive heart failure, rather than hypovolemia. Even had Dr. Carida performed an orthostatic test on R.M., the results would have been indeterminate because diabetics such as R.M. can have orthostatic hypertension even when they are "normal volemic," that is, when their blood volume is normal. Dr. Carida likewise did not fall below the accepted standard of care by failing to do a digital rectal examination of R.M. on April 11, 1994, to determine if there was blood in his stool. Prior to his instructing J.M. to take R.M. to the emergency room, Dr. Carida intended to do an occult blood test from a stool sample as an alternative to a rectal examination in Dr. Carida's office, and Dr. Carida instructed his staff to give R.M. a stool card home to take home and return the next day. Once R.M. began exhibiting chills and rigors, Dr. Carida appropriately determined that there was a risk that R.M. would have a life-threatening vasovagal reaction to a rectal examination. The evidence presented by the Department is not sufficient to establish that Dr. Carida failed to consider R.M.'s March 1994 hospitalization for gastrointestinal bleeding when Dr. Carida examined R.M. on April 11, 1994; that Dr. Carida failed to obtain an accurate history of R.M.'s complaints and symptoms during R.M.'s April 11, 1994, office visit; that Dr. Carida failed to recognize R.M.'s cardiac symptoms; or that Dr. Carida failed to recognize the emergent status of R.M. during R.M.'s April 11, 1994, office visit. Dr. Carida's failure to record in his notes of R.M.'s April 11, 1994, office visit that he told J.M. to take R.M. to the emergency room and that she refused is not, of itself, sufficient to establish that these events did not occur. Dr. Carida did not fall below the accepted standard of care under the circumstances by instructing J.M. to take R.M. to the emergency room at the North Broward Medical Center rather than calling the hospital and admitting R.M. to the hospital directly. R.M. was experiencing chills and rigors in Dr. Carida's office, and R.M.'s condition generally was worsening. It was generally known among physicians in the community that a patient would likely receive the necessary tests and therapeutic interventions much more quickly if he or she presented in the emergency room than he or she would if directly admitted into the hospital. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Dr. Carida did not prepare an adequate record of R.M.'s April 11, 1994, office visit.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Medicine, enter a final order: Dismissing Count I of the Administrative Complaint dated November 2, 1998; and With respect to Count II of the Administrative Complaint dated November 2, 1998, finding that Dr. Robert V. Carida violated Section 458.331(1)(m), Florida Statutes (1993), issuing a written reprimand, and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 24th day of March, 2000, 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 (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 24th day of March, 2000.

Florida Laws (6) 120.569120.57120.6820.43458.311458.331 Florida Administrative Code (1) 64B8-8.001
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DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES vs. TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, 85-003247 (1985)
Division of Administrative Hearings, Florida Number: 85-003247 Latest Update: Sep. 17, 1986

The Issue Whether respondent was in violation of Section 43.201 (6), Florida Statutes, and Rule 10D-41.33(2), Florida Administrative Code, by failing to observe certain quality control procedures and by failing to document actions taken as alleged in the Administrative Complaint.

Findings Of Fact STANDARDS APPLIED: In 1967, the Medicare program was established by the federal government. It provided for reimbursement to independent clinical laboratories for services furnished to Medicare patients. Standards for the clinical laboratories were set forth in Subpart M of the Social Security Administration's Regulations No. 5 (Code of Federal Regulations, Title 20, Chapter 3, Part 405), entitled Conditions for Coverage of Services of Independent Laboratories (henceforth Subpart M). Subpart M was administered by the Health Care Financing Administration (HCFA). Also in 1967, the Clinical Laboratories Improvement Act of 1967 (CLIA) was passed by the federal government which applied to laboratories engaged in interstate commerce, and a new Part 74 was added to the Public Health Services Regulations, Title 42, Code of Federal Regulations, which set forth the standards for these laboratories. In 1967, the Florida legislature completely revised the clinical laboratory law that had been in effect in Florida since 1949 by enacting the Florida Clinical Laboratory Law. Ms. Phillips testified that the purpose of the legislation was to parallel the federal requirements for clinical laboratories so that the same standards would apply to all laboratories in Florida. Thus Florida has applied federal standards in its state inspections since 1967. Rule 10D-41.33, Florida Administrative Code, 1/ contains language patterned after the language set forth in Subpart M in 1967. 2/ Thus, although the rule does not incorporate the federal standards by reference, HRS contends that clinical laboratories would be aware that federal standards would apply to state inspections due to the language used in the Rule. 3/ However, clinical laboratories in Florida were never specifically notified that federal standards would apply to state inspections and they were never sent federal regulations, standards or guidelines. TMRMC has been accredited by the Joint Commission on Accreditation of Hospitals (JCAH) since 1979. In 1978, the JCAH adopted the federal quality control standards. Therefore, JCAH accredited hospitals are not subject to federal inspection because, if they meet JCAH standards, they met federal standards. However, the JCAH inspects only once every three years. HRS INSPECTIONS: HRS has a contract with the federal government to perform the inspections of clinical laboratories that are required under federal law. HRS also performs the inspections required by state law. HRS applies the same standards regardless of whether it is a state or federal inspection. Since 1983, state inspections of clinical laboratories have been required annually. However, due to a lack of personnel, annual inspections of every laboratory have not been possible. When an inspection is done, the HRS surveyor has a checklist form to provide a guideline for the inspection. The checklist form follows the requirements in the rules and policies put out by the federal government. After the inspection is concluded, the hospital is not provided with a copy of the checklist but is given a list of deficiencies which are taken from the checklist. The inspector also informs the laboratory director of the deficiencies verbally at an exit conference. The hospital or laboratory gets the statement of deficiencies from HRS on a standard form which lists the deficiencies on the left side and provides space for the laboratory to indicate a plan for correction on the right side. The hospital fills in the right side of the form and returns it to HRS. If the laboratory does not receive a reply back from HRS, the response from the laboratory is acceptable to HRS. HRS INSPECTIONS OF TMRMC: The TMRMC laboratory has been inspected three times by HRS: in 1980, in 1982, and in 1985. The inspection involved in this case occurred from April 16th through April 19th of 1985. The inspection that occurred in 1982 resulted in cited deficiencies. The lab responded to those deficiencies in accordance with HRS procedure. TMRMC did not receive a reply back from HRS on most of the responses and, therefore, considered that those responses provided for adequate quality control. HRS does not customarily impose a fine for a violation unless it is a repeat violation. SPECIFIC CHARGES a. RIA BACKGROUND RECORD DID NOT CONTAIN ACCEPTABLE LIMITS: The RIA background records are associated with an instrument called a gamma counter. The gamma counter counts radioactivity. To insure accurate readings, the level of background radiation must be determined and must be within acceptable limits. Each day prior to running any tests, TMRMC personnel determined the background level, recorded it, and adjusted the machine to subtract the background level so that it would not affect the test results. However, as the background level gets higher, the possibility for error becomes greater. A background level that is too high might affect the test results. Therefore, an acceptable background limit is established. TMRMC established 35 as an acceptable limit. The limit was recorded in the procedures manual for the machine. Since the background limit was stated in the manual, the laboratory technologists did not write it down each time they recorded the background level. Laboratory personnel were to read the procedures manual prior to doing the test and thus would be aware of the limit. Further, the technologists who ran the tests were highly skilled personnel and, after performing the procedure several times, were aware of the limit since it does not change. The background level recorded was outside the limit nine days in March and about 14 days in April of 1985. However, there was no evidence presented as to how far over limit the levels were. TMRMC has a very stringent background limit. A limit of up to 100 would be acceptable. Therefore, at TMRMC, if the background level is slightly over limit, where the test results would not be affected, the machine might simply be adjusted to the background level. However, if the background level is well over limit, the machine would be cleaned. In 1982, TMRMC was notified of a deficiency in their records with the statement "RIA background counts records did not contain acceptable limits." (P. Ex. #7, p.3). TMRMC interpreted this as meaning that the background limit had to be recorded in the manual. The failure to write down the background limit each time the background level is recorded is not inadequate quality control since the background limit is recorded in the procedures manual. Although the labs inspected by Mrs. Bass have always included the background limit on their records, the repetition of the limit each time the level is recorded is simply unnecessary for adequate quality control, and there was no evidence presented that any state, federal, or other authority required that it be done to insure adequate quality control. b FAILURE TO PROVIDE DOCUMENTATION TO SHOW THAT OSMOMETER WAS CALIBRATED EACH DAY OF USE. An osmometer measures osmolality, the concentration of particles in a solution. TMRMC calibrated the instrument to three standards each time the instrument was run. The osmometer displays from 0 to 1,000 millivolts. A standard is placed in the instrument, and the instrument is set so that the volt reading correlates to the standard. TMRMC uses 100, 290, and 1,000 standards. Each standard is placed in the machine, the machine is calibrated to that standard, and an electronic curve is created. After all three standards are set, the technician puts a checkmark on the sheet to indicate the procedure has been followed. Each standard has its number on the bottle. Therefore, it is unnecessary to write down that the 100 standard was set at 100, the 290 set at 290, and the 1,000 set at 1,000. The checkmark indicates that all three standards have been properly set. After the standards are set, controls are run to insure that the calibration is correct. Mrs. Bass, who performed that inspection, felt that the three numbers had to be written down each time the machine was calibrated. However, TMRMC uses the same three standards to calibrate the osmometer each time, the written procedure for the machine requires that all three standards be used to calibrate the instrument, and a checkmark provides the same quality control as writing down 100, 290 and 1,000. Therefore, the checkmark is sufficient documentation to show that the osmometer was calibrated each day of use. HRS rules do not require that the standard number be written down each time to provide documentation, nor do the regulations of Medicare, the CLIA, or the College of American Pathologists. The only requirements are that the machine be calibrated and that the performance of the calibration be documented. FAILURE TO INCLUDE CONTROLS WITH EACH RUN OF TOXI LAB DETERMINATION Toxi-lab is a screening procedure for abusive drugs, such as marijuana and cocaine. A control should be included with each run. TMRMC did include a control with each run, but did not run a control each time in the extraction process. 4/ A control is a sample that contains the analyte which is being checked. It is run through the process at the same time that the specimen is tested. If the control reads the way it is supposed to read at the end of the process, it is presumed that the specimen has been properly processed. There is nothing in the HRS rules that requires a control to be run with each test. However, the federal regulations specify that a standard and a control are to be run with each clinical chemistry test when such are available. Further, adequate quality control would generally require a control to be run. However, with the newer more automated instruments and procedures, running a control with each test is not necessarily required. The toxi-lab test is a fairly new test which became commercially available in 1980 or 1981. There are two types of controls that are used with the test. When HRS inspected in 1982, it stated that a control needed to be run in the extraction process. However, there was no control available for the extraction process at that time. Subsequent to that inspection, a control for the extraction process was found. The company that produced the control recommended that it be run at least once a week, and TMRMC followed the manufacturer's recommendation. Running a control through the extraction process could indicate whether a tube was defective or whether the technologist's technique was correct. However, due to the nature of the test, the fact that the technologist's technique on the control is adequate does not indicate that the patient's specimens are handled properly, and the same applies to the incident of defective tubes. In other words, running a control along with the specimens cannot insure that the tubes with the specimens are not defective or that the technologist's technique on the specimens is the same as on the control. 5/ There was no evidence presented to show that the failure to run a control through the extraction process each time resulted in inadequate quality control. In 1982, HRS stated only that TMRMC had to run a control through the extraction process: it did not specify that the control had to be run each time. Therefore, TMRMC followed the manufacturer's recommendation for the frequency in which to run a control through the process. THREE LEVELS OF CONTROLS WERE NOT RUN ON THE FIRST SHIFT AND A MINIMUM OF TWO (2) LEVELS OF CONTROLS WERE NOT RUN ON EACH EIGHT-HOUR SHIFT THEREAFTER IN THE BLOOD GAS LABORATORY On the blood-gas analyzers, there are three basic levels of controls-a low, a medium, and a high-which are used to check the calibration of the instrument. TMRMC did not have any shift in which all three levels were run. Mrs. Bass stated that HRS requires three levels to be run on one shift, and two levels to be run on the other two shifts, in order for a lab to provide adequate quality control. There is a dispute among the authorities on what is necessary to provide adequate quality control. Some authorities suggest that three levels must be run on each of the three shifts; other authorities believe that two, two, and two is sufficient. In 1982, TMRMC was advised that they had to run the tests on a three, two and two basis. However, subsequent to 1982, TMRMC acquired a newer instrument that was more sophisticated. Thereafter, TMRMC ran one level on each shift, except on days when open-heart surgery was scheduled. On these days, two levels were run on the first shift. The new instrument acquired by TMRMC performs self- checks with sufficient frequency to detect problems in the instruments. The earlier instruments were completely manual and had no self-checks built into them. Therefore, a greater number of controls had to be run to provide adequate quality controls on the earlier machines. Further, the laboratory has two of these highly sophisticated instruments, and whenever a value for a patient deviates from the norm, the specimen is checked on the other machine. Although TMRMC contends that it was running at least one level on each shift, and two levels on the first shift when there was open heart surgery scheduled, TMRMC failed to provide any documentation that they were consistently running a control on the 11:00 at night to 7:00 on the morning shift. Obviously, despite the degree of sophistication of the instruments used by TMRMC even TMRMC felt that adequate quality control required that a control level be run in each shift. However, it is impossible to determine whether the control was run each shift because there was no documentation that it was done. Therefore, TMRMC failed to provide adequate quality control by failing to provide documentation that any control was run daily on the third shift. FAILURE TO CONSISTENTLY DOCUMENT CORRECTIVE ACTION WHEN CONTROL RESULTS WERE OUT OF LIMITS IN THE CHEMISTRY LAB: In February, March and April of 1985, control results in the chemical laboratory were out of limits on 21 occasions. During this time, there was no documentation of any action taken to correct this situation. There was no way of knowing what corrective action was taken before patient results were reported. Since there was no documentation as to what corrective action was taken when the laboratory records showed that the results were not within the stated acceptable limits, there was no way of knowing whether corrective action was actually taken. In many cases a control specimen may be out of limits and still be acceptable. Approximately five percent of the control results will be outside the limits that are set. Corrective action is not always indicated merely because the control is outside of the acceptable limits. It must be judged in the context of the entire day's work to determine whether there is something actually wrong or whether it is just a statistical fluke. Nevertheless, in the 21 instances cited, TMRMC failed to indicated that corrective action was not necessary under the circumstances. Because no documentation was provided, it is impossible to determine whether the out of limits results were acceptable, so that corrective action did not need to be taken, or whether the out of limits results indicated that corrective action needed to be taken and no corrective action was performed. Therefore, by failing to provide the appropriate documentation, TMRMC failed to provide adequate quality control. TAPES FROM THE QUANTUM DRIFT TEST WERE NOT RETAINED FOR TWO (2) YEARS: TMRMC was unable to locate the tapes from the Quantum drift test for the previous two years. During her investigation, Mrs. Bass asked the supervisor to produce the tapes containing the results of the Quantum drift test, which is used as part of RIA analysis, but the supervisor was unable to produce the requested documentation. TMRMC stated that the tapes for the Quantum drift test were retained for two years. The majority of them were discovered after the inspection. The tapes had been relocated from one room to another. Nevertheless, at the time of the inspection, TMRMC did not have the tapes and didn't know where they were. THE CONSTANT PACKING OF THE MICROHEMATOCRIT CENTRIFUGE, IN THE HEMOTOLOGY LAB, WAS NOT CHECKED QUARTERLY: To determine optimum packing of the centrifuge, twelve viales are paired, and one pair is run one minute, one pair is run two minutes, one pair is run three minutes, one pair is run four minutes, one pair is run five minutes, and one pair is run six minutes. The time which reveals the optimum packing in both of the tubes would be the amount of time to spin hemotocrits in the centrifuge. TMRMC did not provide any documentation to show that this procedure was run quarterly. In 1932, HRS advised TMRMC that the timer and constant packing of the microhematoc it centrifuge had to be checked quarterly. TMRMC responded saying that it felt that checking the timer monthly on the centrifuge and checking the speed of the centrifuge monthly was a better check than the constant packing quarterly. TMRMC also noted that such testing was in compliance with College of American Pathologists' checklist, and that quarterly packing would not assure better results. HRS failed to reply to TMRMC's response. Therefore, TMRMC assumed that HRS had accepted the alternate quality control provided by TMRMC. In that the evidence established that HRS replied to any response by a laboratory that was not acceptable, it must be concluded that the procedures followed by TMRMC provided adequate quality control. FAILURE TO PROVIDE DOCUMENTATION TO SHOW THAT CONTROLS WERE INCLUDED WITH FACTOR ASSAY: There are different factors pertaining to the clotting of blood. when Ms. Bass reviewed the records for February and March, she could not find any FDP controls, and for the month of February, she could not find any Thrombin controls. The controls are needed to insure that the reagents are performing as they should, that the methodology is performing as it should, that the technique is acceptable, and that the patient results are as accurate as possible. The records provided documentation that the controls were used in other months but not during the particular months mentioned. The problem with the documentation was that TMRMC had installed a computer system which only retained the results for a period of 45 days. Some of the supervisors did not realize that the results had to be printed onto hard copy within the 45 day period or they would be lost forever. Therefore, when Ms. Bass inspected in April, some of the documentation was missing because the section head forgot to run a hard copy of the results prior to 45 day expiration period. Nevertheless, without the documentation, it was impossible to determine whether those controls had been run during the months in question, and thus determine whether adequate quality control was provided. FAILURE TO INSURE THAT THE ACTUAL RESULTS FOR THE FIBROMETER TIMER AND STOPWATCH WERE RECORDED: TMRMC did have documentation showing the actual results of the fibrometer timer and stopwatch checks. For some reason unknown to the manager of the TMRMC laboratory, the records apparently were not seen by Ms. Bass during her inspection. The records were kept at the particular bench where the test was performed, and the manager had no idea why Ms. Bass did not see them. Had Ms. Bass asked the laboratory manager for the records, they would have been produced. The records indicate that the fibrometer timer was checked against the stopwatch for ten seconds, with an acceptable variation of plus or minus .3 seconds, and that the stopwatch was checked against the wall clock-for thirty seconds with an acceptable variation of plus or minus 1 second. Because TMRMC did document the results of the fibrometer check and the stopwatch check and did provide the acceptable limits on the records that were kept, TMRMC did not have inadequate quality controls. FAILURE TO INSURE THAT CORRECTIVE ACTION WAS CONSISTENTLY DOCUMENTED WHEN CONTROL RESULTS WERE OUT OF LIMITS. The above is the same violation alleged in violation a "e". However, this violation refers to the hematology lab, whereas "e" concerns the chemistry lab. On several dates, the controls were outside of the limits, and no documentation was provided to show what corrective action had been taken. On several other dates, there was no documentation indicating that the controls were run, and therefore there was no way to know if the results were out of limits. For the reasons set forth in the findings of fact for violation "e", TMRMC failed to provide. adequate quality control due to its failure to provide appropriate documentation of the action taken. THE CONSTANT PACKING OF THE MICROHEMATOCRIT-CENTRIFUGE IN THE FAMILY PRACTICE LAB WAS NOT CHECKED QUARTERLY: This is the same violation as alleged in violation "g", except that this refers to the centrifuge in the family practice lab rather than the centrifuge in the hematology lab. - For the reasons set forth in the findings of fact relating to violation "g", TMRMC provided adequate quality control by checking the timer and the speed of the centrifuge monthly.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that TMRMC violated Rule 10D-41.33(2), Florida Administrative Code, as alleged in paragraphs 3(d), (e), (f), (h), and (j), dismissing those charges set forth in paragraphs 3(a), (b), (c), (g), (i) and (k), and imposing a fine of $100 for each violation, a total fine of $500.00. DONE and ENTERED this 17th day of September, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1986.

Florida Laws (2) 120.57483.201
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FRANK GIAMPIETRO vs BOARD OF CHIROPRACTIC, 90-003399 (1990)
Division of Administrative Hearings, Florida Filed:Fort Pierce, Florida Jun. 01, 1990 Number: 90-003399 Latest Update: Oct. 18, 1990

The Issue The issue in this case is whether Frank Giampietro (Petitioner) should be awarded additional credit for answers given on the chiropractic physical diagnosis practical licensure examination administered in November, 1989, and based thereon, whether he should be licensed to practice chiropractic in the State of Florida.

Findings Of Fact Petitioner has been licensed to practice chiropractic in the State of Rhode Island since March, 1986. He took the diagnosis portion of the chiropractic practical examination administered by the Respondent on November 9, 1989, for purposes of being licensed in the State of Florida. Petitioner received a grade of 68.7% on this portion of the exam. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam, and based thereon, whether he should have passed this examination. It was established that the physical diagnosis practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner disputed the score he received in the areas of neurology, orthopedics, and differential diagnosis. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 2 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physical diagnosis practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, one examiner gave Petitioner the grades of 2.5 in orthopedics and 3 in both neurology and differential diagnosis, while the other examiner gave him 2 in orthopedics, 2.5 in neurology and 3 in differential diagnosis. If Petitioner received two additional raw points on these three content areas which are under challenge, he would receive an overall passing score of 75%. Regarding the practical exam content area of orthopedics, the Petitioner improperly performed Apley's test, according to the expert testimony of Dr. Ordet, and incorrectly responded that the medial and lateral meniscus could not be differentiated using Apley's test. The Petitioner also improperly performed McMurray's test, as well as muscle testing of the hamstrings and quadriceps. The Petitioner's witness, Dr. Hoover, confirmed that he did not properly perform Apley's test, and did not make a determination as to the medial or lateral meniscus by rotating the patient's foot, as he could have. Regarding the neurology portion of the exam, Petitioner incorrectly identified the location of the upper motor neuron track, and according to Dr. Ordet, the Petitioner also incorrectly stated that pathologic reflexes which would actually be for a lower motor neuron lesion were the pathologic reflexes for an upper motor neuron lesion. This was a very significant error, according to Dr. Ordet, whose testimony is credited. Regarding the differential diagnosis portion of the exam, the Petitioner's response to the patient's bowel blockage was not precise or specific. Petitioner did not demonstrate that he had more than an adequate understanding of this subject area due to the nebulous answers he gave. Even the Petitioner's witness, Dr. Hoover, agreed with the grade of 3 which Petitioner received on this portion of the exam. Based on the evidence in the record, it is found that Petitioner was correctly graded on the orthopedics, neurology and differential diagnosis portions of the practical examination. It was not established that the grades given were contrary to fact or logic, and in fact, competent substantial evidence supports the grades which he received.

Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to his grades on the orthopedics, neurology and differential diagnosis portions of the November, 1989, chiropractic examination. DONE AND ENTERED this 18th day of October, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX (D0AH CASE NO. 90-3399) The Petitioner did not file specific proposed findings of fact, but did file a letter dated September 28, 1990, on October 1, 1990, addressed to the undersigned. This letter does not evidence that a copy was provided to counsel for the Respondent, and therefore, it has not been considered. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. 4. Adopted in Finding 2. 5-6. Adopted in Finding 7. 7-8. Adopted in Finding 8. 9-10. Adopted in Finding 9. COPIES FURNISHED: Frank Giampietro 1704 Adair Road Port St. Lucie, FL 34952 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792

Florida Laws (2) 120.57460.406
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MICHAEL ROSIN, M.D., 05-002576PL (2005)
Division of Administrative Hearings, Florida Filed:Sarasota, Florida Jul. 18, 2005 Number: 05-002576PL Latest Update: Dec. 23, 2024
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