The Issue Whether Respondent's license as a physician should be disciplined for the alleged violations set forth in the Administrative Complaint.
Findings Of Fact Petitioner, Department of Health, Board of Medicine (Petitioner), is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent, Santo S. Bifulco, M.D. (Respondent), is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued License Number ME 0056868 on February 13, 1990. He has been continuously licensed since February 1990 and has never been disciplined by the Board of Medicine. Respondent, a physiatrist, specializes in physical medicine and rehabilitation. He entered private practice immediately after completing a four-year residency program in physical medicine and rehabilitation. During his residency, Respondent learned and performed electrodiagnostic and neurodiagnostic tests. He was trained in the use of videofluoroscopy, electroencephalogram, needle and surface electromyography, nerve conduction studies, and other electrodiagnostic tests. Respondent performed far above the minimum 200 required for successful completion of the residency program. As a part of his residency, Respondent also had the opportunity to observe and work with chiropractic physicians from the local chiropractic medical school, thereby allowing him to understand the role of chiropractic care and allopathic medicine in the treatment of a patient. Respondent first saw E. C. on December 9, 1991. At the time, he had been practicing physical medicine and rehabilitation for a little more than a year since completion of his residency program. Prior to coming under the care of Respondent, E. C. had been involved in a motor vehicle accident on August 9, 1991. The patient had been treated by both her family physician, Dr. George Harris, and her chiropractic physician, Dr. Richard Thomas, D.C., for the injuries which resulted from the accident. Dr. Harris prescribed medications for E. C. and Dr. Thomas provided and was continuing to provide several modalities for E. C.'s injuries resulting from her motor vehicle accident. Despite ongoing treatment by Dr. Thomas, E. C. was not significantly improving. Because E. C. was not improving under his care, Dr. Thomas referred her to Respondent. The purpose of the referral was for consultation and a second opinion. Respondent was also asked to determine what, if any, medications should be given to the patient and to provide them to the patient if it were appropriate. Respondent was not asked to nor did he assume direct primary care for the patient. Rather, Respondent's role was to provide Dr. Thomas with guidance as to the diagnosis and treatment direction for E. C. In his written report dated November 25, 1991, Dr. Thomas indicated that he was referring the patient to Respondent for further evaluation and for medication that might assist in the improvement of her symptoms. He noted that he would continue to provide palliative care to E. C. until such time as Respondent evaluated her and he had received Respondent's report and recommendation. When E. C. first came under Respondent's care, it was four months after the accident. However, her overall condition had not significantly improved. She had constant headaches, which were extreme and associated with dizziness, a history of high blood pressure, constant cervical pain radiating into her arms, thoracic pain or pain between the shoulder blades, numbness and tingling, and was limited in her physical activities. The pain was interfering with all aspects of her life, including her ability to work and sleep. Respondent performed a physical examination of E. C. on December 9, 1991. On physical examination, Respondent found that E. C.'s neck range of motion was markedly limited and associated with pain; that her lower back range of motion was markedly limited and associated with pain; and that she had positive findings on orthopedic examination, as well as, on neurologic examination. From Respondent’s examination, it appeared that E. C. had suffered injuries from the motor vehicle accident. Moreover, Respondent determined that E. C. was in need of continuing care and because she had not improved, was also in need of further diagnostic studies to evaluate the extent and nature of her injuries and her complaints. E. C. presented as a complicated case due to the length of time that had passed since the motor vehicle accident and the lingering and persistent complaints experienced by E. C. associated with that accident. Respondent’s impression was that E. C. had post- traumatic headaches and injuries to the soft tissues of the neck with radiating pain. Respondent believed that E. C. was involved in what is commonly known as a medical/legal case. Consistent with this belief, Respondent reasonably concluded that his role was to thoroughly evaluate E. C.'s condition by addressing and objectively documenting answers to the questions relative to the cause, extent, and nature of her injuries. Respondent obtained Dr. Thomas’ records to evaluate the care E. C. had been receiving and reviewed E. C.'s X-rays with her on her first visit. Based on his review of the records and his examination of E. C., Respondent believed that the care provided by Dr. Thomas was appropriate for E. C.'s condition and that she would benefit from continued conservative care. However, Respondent felt that for E. C. to reach her maximum potential, additional diagnostic tests could reasonably assist him in arriving at a diagnosis and recommendation for treatment of the patient’s condition. Respondent initially recommended that E. C. undergo diagnostic testing or studies including: nerve conduction studies; a Dermatomal Somatosensory Evoked Potential (DSEP); an electroencephalogram (EEG); a cervical Magnetic Resonance Imaging (MRI); and cinefluoroscopy or videofluoroscopy studies of the cervical spine. These tests were ordered and/or recommended because Respondent reasonably believed that they could assist him in determining the nature and extent of E. C.'s injuries and complaints and arriving at a recommendation for treatment. E. C. subsequently underwent the recommended testing. To assess the discs and other cervical soft tissues, Respondent recommended that E. C. receive imaging studies. Respondent recommended an MRI study of the cervical spine. This study was conducted on December 19, 1991, at the Access Imaging Center. The purpose of the MRI was to evaluate whether E. C. was suffering from a condition that could be treated by surgery. An MRI is a static exam and is the "gold standard" in looking for a herniated disc. E. C.'s MRI was normal, thus, ruling out the possibility of the need for surgical treatment of her condition. To assess ligamentous structures and capsular stability, Respondent also recommended that E. C. receive a videofluoroscopy of the cervical spine or dynamic motion studies. The videofluoroscopy was obtained on December 11, 1991, and was performed at the Tampa Bay Dynamic Imaging Center. The videofluoroscopy was the only test available to observe the movement of the cervical spine through a full range of motion versus the limited views obtained in extension and flexion X-rays, where the patient's neck is seen in a fully extended position, neutral position, and fully flexed position. In E. C.'s case, videofluoroscopy served to confirm the presence of a soft tissue injury. The videofluoroscopy exam revealed hypomobility of the cervical spine at the level of C5-6 and C6-7. This result was consistent with the extension and flexion X-rays of E. C. that had been taken while she was under Dr. Thomas' care. However, Respondent felt the videofluoroscopy was an appropriate diagnostic tool to determine if E. C. had deteriorated since her last exam or had greater instability than was thought to be present from review of the static flexion/extension films. The videofluoroscopy and the MRI allowed Respondent to determine the extent and nature of the patient’s injuries and make recommendations for continuing treatment to her primary physician, Dr. Thomas. Both imaging tests provided useful information in the diagnosis and treatment of the patient’s condition. E. C., who worked as a florist, was experiencing problems working, lifting, and performing many routine activities in her daily life. Because E. C. was not progressing in treatment, Respondent wanted an objective assessment of her strength and ability to lift. Respondent believed that this information would help guide E. C. and Dr. Thomas in advising the patient concerning what she should or should not be lifting. To accomplish this objective, Respondent ordered a N.I.O.S.H. lift test and a Range of Motion test. These tests were performed on December 19, 1991, in Respondent's office. The N.I.O.S.H. lift and Range of Motion tests are components of a battery of tests that make up what is commonly known as a functional capacity evaluation. A functional capacity evaluation is an extensive series of tests to determine a patient’s ability to return to work. By itself, a N.I.O.S.H. lift test is not a functional capacity evaluation and was never intended to be used in that manner by Respondent. Though E. C. had not significantly improved under Dr. Thomas' care, it appeared to Respondent that she had reached a plateau in that her condition was not improving. The N.I.O.S.H. test is appropriate when a patient like E. C. has reached a plateau in her care and is not progressing. It gives the physician information from which to base recommendations on the scope and nature of the activities in which the patient may participate. Furthermore, it helps the physician in designing a strengthening program appropriate to the patient’s physical limitations. It can also provide a baseline for future tests and serial evaluations of the patient’s progress. Respondent was unable to make use of the results from the N.I.O.S.H. test or obtain comparison tests because E. C. failed to return to his office after February 1992. To assess the presence or absence and the extent of any neurologic dysfunction in the upper extremities, Respondent recommended that the patient undergo nerve conduction studies. E. C. underwent those studies on December 30, 1991, in Respondent's office. The purpose of nerve conduction studies is to objectively evaluate peripheral nerve function. It is an average measure of the time it takes an electrical nerve impulse to travel down a segment of the nerve from the spinal column to a particular muscle group. It also includes a measure of the time it takes an electrical nerve impulse to travel from the point of stimulation up to the brain and back. Respondent’s use of nerve conduction studies to objectively look for pathology of the spine or peripheral nerves was warranted given her continued complaints and failure to improve after four months of conservative care. The nerve conduction studies were interpreted by Respondent as abnormal. However, many physicians would have interpreted the studies as normal because, in part, the latency was less than 30 and the difference was less than three milliseconds when compared to both sides. Nonetheless, it is also recognized that these interpretations are judgment calls by physicians based on several factors. To differentiate between problems with the peripheral nerves from those in the central nervous system, Respondent also recommended a DSEP of the upper extremities. This study was conducted on December 30, 1991, in Respondent's office. The DSEP was a companion exam to the nerve conduction studies and supplemented information learned from those studies. The combined exams assisted Respondent with localization of the source of the patient’s complaints and it was appropriate for the Respondent to have obtained both studies. In 1991, the use of the DSEP was relatively new, but it was a test that held out promise to physicians in helping them objectively quantify the functioning of nerves in all of their segments. Over time, it has been found that the DSEP does not provide any greater information than that gained by use of electromyography combined with imaging studies. However, in 1991, the thinking was different. In addition to the nerve conduction studies and the DSEP, Respondent recommended that E. C. undergo a standard awake or EEG. This test was performed on December 30, 1991, in Respondent's office. The purpose of the EEG was to evaluate the source of the patient’s continued complaints of headaches and of difficulty with sleeping. According to E. C., these problems had persisted for four months. The EEG was an inexpensive tool to evaluate whether E. C. was suffering from an intracranial bleed or from some other pathologic condition unrelated to her soft tissue injuries. Given the intensity and persistence of the headaches, Respondent felt that there was the possibility of trauma having gone undetected; he believed that such trauma could not be ruled out even though the patient had not related a history of having hit her head during the motor vehicle accident. The EEG came back as a normal study, thus, allowing Respondent to rule out more serious causes for the E. C.’s headaches. The results of the diagnostic tests allowed the Respondent to report to her primary treating physician his conclusions concerning the extent of the care to be provided, prescribe medications for E. C., identify the distribution of ligamentous instability, the etiology of her complaints, and her safe lifting capacities. It allowed him to rule out the possibilities of serious intracranial lesion and serious neurologic abnormalities. The data was suggestive of a problem in the thoracic outlet. In February 1992, E. C. returned to Respondent for re- evaluation and discussion concerning her medications. She was still experiencing headaches and was reporting that Dr. Thomas’ care was helping but she was unsure if her overall condition was improving. E. C. also reported a new problem with a burning sensation in the right foot at night, which Respondent had not assessed to be problematic. During this visit, Respondent altered her medications and scheduled her for surface electromyography exam (EMG) of the face and neck. The EMG was performed on February 28, 1992, in Respondent's office. The purpose of the surface EMG was to objectively evaluate whether E. C. had muscle spasms, and if so, the degree, interest and location of the spasms. The surface EMG also confirmed the clinical finding of muscle spasms. From the information gained from the study, Respondent could also objectively assess E. C.’s response to existing treatment and her need for further treatment including potential adjustments to be made to her medications in type and quantity. In 1991 and 1992, the results obtained from the surface EMG were thought to be important in providing care to patients or evaluating the treatment being provided. However, over time, it has been learned that muscle spasm can vary on a daily basis and, thus, the data obtained from the surface EMG may not be the best indicator as to how the patient is progressing in treatment. As physicians have learned more about the usefulness of surface EMG, they have come to rely upon it in biofeedback training. The exam provides the patient with an objective visual representation of muscle spasm, which then allows the clinician to teach the patient to relax the affected area. In E. C.’s case, the surface electromyography allowed Respondent to identify areas of muscle spasm for the purpose of planning her continued care. His use of the test in this manner, given the time period in which it was administered, was not inappropriate. E. C. left Respondent’s care after February 28, 1992, and subsequently came under the care of a neurologist, Dr. Alan Spiegel. Dr. Spiegel, who assisted in the treatment of the patient after she left Respondent’s care, did not have any criticisms of the care she had received from her prior treating physicians. As he formulated his treatment plan, Dr. Spiegel had the benefit of the records from E. C.'s prior physicians, including Respondent’s records. While receiving treatment from Dr. Spiegel, E. C. was still under the care of Dr. Thomas. Dr. Thomas’ role was to provide physical therapy while Dr. Spiegel provided medications to reduce inflammation and spasm. In fact, because she had received prior diagnostic exams, there was no need for Dr. Spiegel to perform any additional tests. Dr. Spiegel placed E. C. at maximum medical improvement on April 20, 1992, and found that there was a significant impairment of her physical condition. She experienced an exacerbation of her condition, received additional treatment, and was again placed at maximum medical improvement on October 9, 1992. At the time of the formal hearing, E. C. was still suffering from the injuries sustained in the motor vehicle accident of August 9, 1991. She continues to experience flare- ups of her condition and continues to receive treatment for her condition. Respondent's use of the diagnostic tests was not exploitative and was medically indicated at the time they were ordered. Respondent’s use of diagnostic tests was reasonably calculated to assist him in reaching a diagnosis and in making recommendations for continued treatment to her primary physician, Dr. Thomas. The tests were also used by her subsequent treating physicians in rendering care to the patient. This avoided the necessity of having the patient undergo further testing. As with many new practitioners, Respondent ordered more diagnostic tests than a more experienced practitioner might have thought necessary under the same circumstances. Moreover, since Respondent was fairly new in the practice, it was not unreasonable for him to have ordered more diagnostic exams than a more experienced practitioner might have ordered under similar conditions and circumstances. However, the fact that Respondent ordered more tests than a more experienced practitioner does not mean that the tests he obtained were not reasonably calculated to assist him in arriving at a diagnosis and recommendation for treatment of E. C.'s condition. Nor do more tests mean that they were not medically indicated. Several practitioners testified at the hearing and in their depositions that the tests were appropriate, particularly in 1991. Reasonable practitioners will differ as to the number and type of tests they will order to arrive at a diagnosis and treatment of a patient’s condition. At the formal hearing and in the written reports submitted into evidence, the opinions of seven physiatrists (Respondent, Dr. Gerber, Dr. Goodgold, Dr. Kelley, Dr. Krimshtein, Dr. Lichtblau, and Dr. Narula), a neurologist (Dr. Spiegel), a psychiatrist (Dr. Sprehe), and a neurosurgeon (Dr. Meriwether) were offered by the parties. Each of the physicians had a different belief as to the tests that he would order to evaluate E. C.'s condition. The Department provides appropriate and comprehensive training to members of the Board of Medicine as required by Section 458.307(4), Florida Statutes. At all times relevant to this proceeding, such training was provided to Board members when they were initially appointed as well as periodically throughout their tenure on the Board. Various methods utilized to implement and accomplish the required training included the following: viewing of appropriate videotapes; attendance at seminars and retreats; regular presentations at Board meetings; and dissemination of newsletters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order in this case dismissing all charges against Respondent. DONE AND ENTERED this 7th day of July, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 7th day of July, 1999. COPIES FURNISHED: John E. Terrel, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Grover Freeman, Esquire Jon M. Pellett, Esquire 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308
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.
The Issue Whether Petitioner's challenge to the failing grade he received on the physical diagnosis portion of the May 2001 chiropractic licensure exam should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a chiropractic doctor who has been licensed to practice in the state of Ohio since 1993. He maintains an active practice in Ohio, and he currently sees approximately 190 patients per week. Petitioner filed an application with the Department for a Florida chiropractic license. Applicants for licensure are required by statute and rule to take the licensure exam developed by the Department. Petitioner took the exam in May 2001. The exam consists of four parts, three practical and one written. The practical parts test the applicant on physical diagnosis, X-ray interpretation, and technique; and the written part tests the applicant on the Florida laws and rules regulating chiropractors. An applicant for licensure must receive a score of 75 on each part to pass the examination. Petitioner passed the written part of the exam as well as the X-ray and technique practical parts; however, on the physical diagnosis part, he received a failing score of 70. As a result, he failed to pass the exam and may not receive a Florida chiropractic license.2 The physical diagnosis part of the exam consisted of 26 tasks which the applicant was required to perform within the allotted time of 70 minutes. The physical diagnosis part of the chiropractic licensure exam is developed by a team of consultants retained by the Department. The team consists of licensed chiropractic doctors with varied practices and at least ten years of experience. The team derives the exam questions from case studies from prior administrations of the exam. The team meets on several occasions to refine the case studies and rework the questions. The team also develops and refines the answers to the questions based upon their research and a consensus reached after debate. After the exam questions are finalized and before the administration of the exam, the Department holds standardization sessions which all of the examiners are required to attend. The purpose of the standardization sessions is to ensure that each examiner knows what is a correct answer and what is an incorrect answer for each question. This, in turn, ensures consistency in the evaluation and grading of all applicants. The examiners who evaluated Petitioner's performance on the physical diagnosis exam attended all of the standardization sessions. The applicant's performance of each task in the physical diagnosis part of the exam is independently graded by two examiners. The purpose of the independent grading is to eliminate any potential bias in the grading and to increase reliability in the scoring of the exam. The examiners independently assigned a letter score -- A, B, or C -- to the applicant's performance on each task. A score of "C" represents full credit for the task. A score of "B" represents partial credit for the task. A score of "A" represents no credit for the task. Where the examiner awards less than full credit, he or she provides a notation on the score sheet regarding what the applicant failed to do properly. The letter score was translated into a numerical score based upon the pre-determined point value for the task. Each of the tasks at issue in this proceeding -- numbers 13, 14, 18, 21, and 22 -- were worth 4 points each. A grade of "C" for these tasks translates into a raw score of 4 points; a grade of "B" on these tasks translates into a raw score of 2 points; a grade of "A" on these tasks translates into a raw score of 0 points. The raw scores resulting from each examiner's grades are totaled separately and, then, those totals are averaged. The averaged score is what is reported to the applicant as his or her final score on the physical diagnosis part of the exam. As noted above, Petitioner received a score of 70 on that part. Task 13 (S1 Dermatome) Task 13 contained two sub-tasks. To receive full credit for Task 13, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the S1 dermatome, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 13. Thus, Petitioner received only two of the possible four points for that task. A "dermatome" is an area of the body surface served by a particular spinal nerve. The S1 dermatome is the area of the body surface served by the S1 nerve. The S1 dermatome encompasses an area which begins on the back of the leg below the calf, runs down the back of the foot over the heel, along a portion of the bottom of the foot to the toes, and then around the outside (lateral) portion of the foot. The expert testimony and the scientific texts introduced in this case vary on the exact portion of the bottom of the foot included in the S1 dermatome. Some indicate that it encompasses only that area from the outside of the foot to the fourth or fifth (little) toe, while others indicate that it extends from the outside of the foot all the way to the midline of the foot at the third (middle) toe. The common element in all of the expert testimony and the scientific texts is that the location of the S1 dermatome on the bottom of the foot is towards the outside of the foot rather than the inside (arch) of the foot. The S1 dermatome is tested by touching the dermatome with an instrument to determine whether the patient exhibits any sensory reaction, i.e., whether and to what degree the patient feels the touch. The dermatome can be tested without tracing its entire area; however, in order to map out the entire dermatome, its entire area would be tested. On the video tape of Petitioner's performance of Task 13, it appears that he is attempting to test the S1 dermatome, rather than demonstrating its area as the task requires. Petitioner can be heard telling the patient that he is going to "test" the dermatome level by touching the patient's foot to see if the patient can feel it. Immediately after these comments, one of the examiners (Dr. Weiss) can be heard on the video tape telling Petitioner to "trace the path of S1." Dr. Weiss also can be heard asking Petitioner to show the examiners where S1 starts and where it goes. Petitioner performed Task 13 by making a single straight-line motion starting on the back of the leg below the calf, then proceeding downward and under the foot, and ending near the big toe. Petitioner repeated the movement, again ending near or even slightly to the inside (arch side) of the big toe. By making only a single straight-line motion along the bottom of the foot, Petitioner failed to demonstrate the area of the S1 dermatome. At most, Petitioner demonstrated the line separating the S1 dermatome from the L5 dermatome, which is adjacent to the S1 dermatome on the bottom of the foot. As noted above, however, the S1 dermatome extends no further than the mid-line of the foot and therefore the line demonstrated by the Petitioner could not have been the boundary of the S1 dermatome. Even if Petitioner understood the task as "test the S1 dermatome" rather than demonstrate its area, the weight of the evidence shows that Petitioner did not correctly test the dermatome along the bottom of the foot. As discussed above, Petitioner's instrument appeared to travel along the inside (arch) of the bottom of the foot rather than the outside of the bottom of the foot. The S1 dermatome does not extend inward on the bottom of the foot beyond the mid-line and it certainly does not extend to the big toe. The notes written by the examiners on the grading sheets indicate that the "B" grade that Petitioner received on Task 13 was based upon the his tracing of an incorrect area on the bottom of the foot. The notes written by Dr. Weiss, the examiner who testified at the hearing, stated "traced wrong area under foot." The notes written by the other examiner similarly stated "S1 under foot incorrect." The notes were corroborated at hearing by the videotape and the testimony of Dr. Mathis. Because Petitioner failed to properly demonstrate the S1 dermatome, the examiners properly gave him only partial credit on Task 13. Task 14 (Acquilles Reflex Test) Task 14 contained two sub-tasks. To receive full credit for Task 14, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the Achilles reflex test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 14. Thus, Petitioner received only two of the possible four points for that task. Petitioner tested the Achilles reflex by lying the patient face down (prone) and then tapping a reflex hammer directly on the Achilles tendon of each foot. Petitioner did not dorsiflex either foot before striking the tendons. The taps elicited a reflexive response which can be clearly seen on the video tape of Petitioner's exam. Had the tap not elicited a response, Petitioner testified that he would have pursued alternative means of testing the reflex. The expert testimony and scientific texts introduced at the hearing show that there are several alternative ways to test the Achilles reflex, all of which are professionally accepted. One way is to tap directly on the Achilles tendon as Petitioner did. This can be accomplished with or without dorsiflexing the foot. The Department was looking for the candidate to pre-stress the tendon by dorsiflexing the foot prior to striking the tendon with the reflex hammer. The evidence does explain why dorsiflexing the foot would be the preferable method of testing the Achilles reflex under the facts of the case study. Another way to test the Achilles reflex is for the doctor to dorsiflex the foot by pressing his or her fingers against the ball of the patient's foot and then tap his or her fingers with a reflex hammer. Where the ankle is swollen or it is too painful to strike the tendon itself, this method of eliciting the reflex is preferred. The case study on which Task 14 was based indicated that the patient had "severe pain and swelling in the right calf, ankle, and heel." The case study did not indicate that the patient had a ruptured Achilles tendon, but that injury could not be ruled out based on the case study. In such circumstances, the expert testimony and scientific texts indicate that the preferred method of checking Achilles reflex would not be striking the tendon itself. Task 18 (X-Ray of 5-year Old) Task 18 contained two sub-tasks. To receive full credit for Task 18, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to answer the question of whether he or she would X-ray a 5-year-old child with certain symptoms, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 18. Thus, Petitioner received only two of the possible four points for that task. The question required applicants to answer "yes" or "no." They were not permitted to explain their answer. The question provided only limited information regarding the child and his medical history. The question did not state whether the parent had signed a consent form authorizing treatment of the child. Without parental consent, it would not be proper for the doctor to render any medical treatment to the child. It would have been reasonable for Petitioner to assume that any necessary consent forms had been signed. Petitioner did not request any clarification on this point from the examiners nor did his response during the exam mention the lack of a signed parental consent form. Instead, Petitioner explained that he would not X-ray the child because of the apparent severity of the child's injury and a concern that the child may have an injury "that wouldn't be chiropractic in nature." Based on these concerns, Petitioner stated during his exam that he would refer the child to his family physician. At hearing, Petitioner indicated that his concern regarding the severity of the child's injury was based upon the case study which indicated that the child was holding his neck. Petitioner considered this to be Rust's Sign. Petitioner did not request any clarification from the examiners regarding the manner in which the child was holding his neck. The expert testimony and scientific texts introduced at hearing indicate that Rust's Sign is most commonly exhibited by the patient supporting his or her head by holding the chin, rather than the neck. The patient holds his or her head to compensate for some muscular, ligament, or disk damage, which causes the neck to be unable to support the head. Even if Petitioner construed the limited case history provided to be evidence of Rust's Sign, the proper course of treatment would not have been to refer the patient to a family physician as Petitioner stated during his exam. Instead, the expert testimony and scientific texts indicate that the proper course of treatment would have been to immediately stabilize the neck with a cervical collar or something similar and immediately perform imaging (e.g., X-ray) to determine the source of the injury. Petitioner is not entitled to additional points for Task 18. Task 21 (Gluteus Maximus Test) Task 21 contained two sub-tasks. To receive full credit for Task 21, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the second sub-task. Only the first sub- task, which required the applicant to perform the gluteus maximus muscle test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 21. Thus, Petitioner received only two of the possible four points for that task. The gluteus maximus muscle is the largest muscle in the body and is largely responsible for the shape of the buttock. It extends and laterally rotates the hip joint. The muscle is tested by having the patient lie face down (prone) with his or her knee bent 90 degrees or more. The importance of bending the knee is to isolate the muscle. While the doctor holds the patient's hip to stabilize it and applies downward pressure to the back of the thigh, the patient attempts to raise his or her leg. The video tape of Petitioner's exam shows that Petitioner had the patient in the prone position. Petitioner did not have the patient bend his knee. Nor did Petitioner have the patient lift his leg up. Instead, the tape shows Petitioner pulling the leg outward as the patient attempted to move the leg inward. Petitioner did not rotate the leg. The expert testimony and scientific texts introduced at hearing show that the test performed by Petitioner was the proper test for the gluteus medius or gluteus minimus rather than the gluteus maximus. This evidence corroborates the notation on one of the examiners' score sheet which stated "did gluteus med[ius]?" And see Endnote 1. Indeed, it appears from the video tape that Petitioner misunderstood the task he was to perform. When Petitioner first read the question for Task 21, he correctly read the two tests he was to perform, gluteus maximus and soleus. Petitioner then performed the soleus test. Then, he could be heard saying "gluteus medius" as if to remind himself what test he was to perform. Immediately after that comment, one of the examiners suggested that Petitioner reread the question. He did so, correctly reading "gluteus maximus." Petitioner then set up the table and got the patient situated. Then, one of the examiners asked which muscle test Petitioner was going to perform. He stated "gluteus medius." Petitioner then stood over the patient for a minute or so, apparently thinking to himself, and then performed the test as described above. Any confusion regarding the test to be performed was not a result of the form of the examination or the conduct of the examiners. The examination clearly indicates that the test to be performed is gluteus maximus. The words "gluteus maximus" are in bold type. The examiners attempted to clarify Petitioner's confusion by giving him an opportunity to correct himself after he first misstated the test to be performed. Task 22 (Trendelenburg Test) Task 22 required the applicant to perform two distinct tests and state what he or she is looking for in each test. To receive full credit for Task 22, the applicant was required to properly perform each test and state what he or she is looking for in each test. The only dispute in this proceeding is whether Petitioner's statement of what he was looking for in the Trendelenburg test was the correct response. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 22. Thus, Petitioner received only two of the possible four points for that task. The Trendelenburg test is used to evaluate the ability of the hip abductors, primarily the gluteus medius, to stabilize the pelvis on the femur. The test is performed by having the patient stand facing away from the doctor. The patient then lifts one of his or her legs. A positive sign is where the pelvis/hip of the lifted leg tilts downward instead of rising. Reference to the pelvic/hip tilt was what the Department considered to be a correct answer for Task 22. When performing the Trendelenburg test, the doctor should stand behind the patient with his or her hands on the patient's hips. This placement of the hands serves two purposes. First, it allows the doctor to feel even slight movement of the pelvis/hip in order to detect even a mildly positive sign. Second, it allows the doctor to stabilize the patient in the event that the patient loses his or her balance. The video tape of Petitioner's exam shows that he correctly performed the Trendelenberg test. He was positioned behind the patient with his hands on the patient's hips. He directed the patient to raise his right leg. Then, he stated that if the patient were to fall over, there would be a gluteus medius problem. Dr. Weiss requested clarification from Petitioner, specifically asking him what he was looking for. Again, Petitioner stated that the patient would fall over or lose his balance. Petitioner never used the word "lurch." The Trendelenberg test could cause the patient to lose his or her balance and "lurch" in the direction of the lifted leg or even fall over, but only in cases of severe weakness in the gluteus medius muscle. Such a response would be a positive Trendelenburg sign. The most common positive sign, however, is a downward tilt of the pelvis/hip on the side of the lifted leg. All of the scientific texts, including that offered by Petitioner, identify the tilt as the positive sign which the doctor should be looking for. The tilt is what causes the "lurch" that occurs in more severe cases. If the doctor is looking only for a "lurch," he or she might miss the tilt and thereby miss the most common positive sign of the Trendelenburg test. Because Petitioner stated that he was looking for the patient to fall over or lose his balance, rather than looking for the pelvis/hip tilt, his response to Task 22 was incomplete at best. Therefore, Petitioner is not entitled to any additional points for Task 22. Disruptive Noise During Petitioner's Examination The physical diagnosis part of the May 2001, licensure exam was administered in several conference-type rooms of a hotel. Approximately five or six applicants were administered the exam in the same room as Petitioner. Several of those applicants went before Petitioner and several went after him. While Petitioner was taking the examination, loud noises could be heard. On the video tape of Petitioner's exam, the noises sounded like loud scraping, scratching, and rumbling of metal, as if a large piece of equipment or furniture was being moved in a nearby area of the hotel. At other points, the noises sounded like thumping or banging. In his testimony, Petitioner described the noise as sounding like a mechanical tool or jack-hammer. Dr. Weiss, one of the Department's examiners who graded Petitioner's performance on the physical diagnosis part of the exam, testified that he heard the noise as well and described them as construction noises outside of the room. The noise was not continuous throughout the exam. The noise first could be heard on the video tape near the end of Petitioner's performance of Task 1. It was very loud, but lasted only for several seconds before subsiding. It could also be heard at a very loud level during Tasks 2, 4, 7, and 17, again for only a few seconds each time. The noise could also be heard during Tasks 6, 8, and 16, but at a much lower level. Immediately after the noise first occurred during Task 1, one of the examiners asked Petitioner if the noise was bothering him. Specifically, the examiner asked, "Is that distracting you?" To which Petitioner responded "No, it’s okay." Had Petitioner indicated that the noise bothered him, Dr. Weiss testified that the examination would have been stopped until the source of the noise problem could be addressed. Neither Petitioner nor the examiners mentioned the noise during the remainder of the exam. The video tape does not show any significant difference in Petitioner's demeanor during the tasks where the noise could be heard than the remainder of the tasks. Throughout the test, Petitioner looked somewhat uncomfortable, but not any more so than would be expected under the pressure of this type of exam. At most points where the noise could be heard, Petitioner appeared to be oblivious to it because he was so deep in concentration on the task at hand. Petitioner completed the physical diagnosis exam with more than 17 minutes of the allotted 70 minutes remaining. After he completed his exam, Petitioner filled out a Candidate Concern Form on which he stated that the noises made it hard for him to concentrate. The form was provided to Adrian Washington who was the Department employee in charge of administration of the exam. Mr. Washington informed the two examiners who evaluated Petitioner that a concern had been filed and requested that they independently describe the incident. Dr. Weiss' written comments on the incident referred to the noises as "distracting to me." However, Dr. Weiss' comments, as well as the comments of the other examiner, stated that Petitioner was asked during the examination whether the noises were distracting to him and that he said "no." The comments of the other examiner confirmed what the undersigned witnessed on the video tape, i.e., that "he [Petitioner] did not appear to be visually upset during the examination." The examiners comments also noted that even with the distraction from the noise, Petitioner completed the physical diagnosis part of the exam with time remaining. Based upon the responses of the examiners, primarily the fact that Petitioner stated during the exam that the noises were not bothering him, Mr. Washington determined that no further action was warranted with respect to Petitioner's examination. He did notify the hotel staff about the distractions around the testing area. No other candidate or examiner expressed any concern to Mr. Washington regarding noise problems during the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order which denies Petitioner's application for a chiropractic license based upon the failing score that he received on the physical diagnosis part of the May 2001 licensure exam. DONE AND ENTERED this 15th day of March, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2002.
