Findings Of Fact In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
Findings Of Fact L. R. Fleming is a chiropractic physician licensed by the Florida State Board of Chiropractic Examiners and holds License #1239. Dr. L. R. Fleming caused to be published in the Today Newspaper an advertisement, a copy of which was introduced into evidence as Petitioner's Exhibit 1. This advertisement read as follows: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute in conjunction with the New York Chiropractic College is presently engaged in what is the most extensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignments and utilizes a screening process called Contour Analysis. Volunteers are being sought for screening. Contour Analysis enables taking a three- dimensional picture (called Moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient symptomatology, and levels of tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasms, muscle imbalance, spinal distortions and scoliosis. There is no charge to participating volunteers, since the doctors are contributing their time, service, and facilities for the program. Final processing and evaluation will be done at the New York Chiropractic College. Anyone wishing to be a volunteer may telephone participating doctors directory for information or an appointment. MERRITT ISLAND TITUSVILLE MELBOURNE (doctor's (doctor's Dr. Lyle name deleted) name deleted) Fleming Phone 254-3343 The advertisement above was published in the Today Newspaper on or about April 1, 1978. Gladys Teate, of Melbourne, Florida, read this advertisement on or about April 1, 1978, and made an appointment with dr. Fleming for contour analysis on April 11, 1978. Gladys Teate kept the appointment on April 11, 1978, and had a contour analysis performed at Dr. Fleming's office. The process of contour analysis consisted of the taking of certain personal data together with symptomatology from Gladys Teate by one of the doctor's assistants. Thereafter, the doctor's assistant took a Moire photograph of Teate's back. Teate was then seen by Dr. Fleming, who performed an elementary examination of Teate's back and explained the Moire photograph to her. Teate had no recollection of the contour analysis, Dr. Fleming's examination, or any subsequent events to include any oral representations made by Dr. Fleming. However, records reflect that x-rays were taken of Teate at Dr. Fleming's office. Thereafter, a thorough chiropractic examination was performed by the doctor, who prepared a written diagnostic recommendation, a copy of which was introduced as Petitioner's Exhibit 3. Teate was unclear as to whether she saw Dr. Fleming on one or two (2) occasions; however, she was given a bill for $10 for a chiropractic examination and a bill for $45 for x-rays upon leaving Dr. Fleming's office. There was no charge for the contour analysis. No competent evidence of Dr. Fleming's indicating that further examination and diagnosis was free was presented. No evidence was introduced that the research program described in the advertisement was not a legitimate research program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners take no action against the license of Dr. L. R. Fleming, D.C. DONE AND ORDERED this 21st day of September 1979 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul W. Lambert, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Louis V. Cianfrogna, Esquire 308 Julia Street Post Office Drawer 6310-G Titusville, Florida 32780 Board of Chiropractic Examiners 6501 Arlington Expressway Building B, Suite 202 Jacksonville, Florida 32211
The Issue The issues are whether Respondent is guilty of making or filing a false report signed in the capacity of a licensed chiropractic physician, in violation of Section 460.413(1)(j), Florida Statutes, and, if so, the penalty.
Findings Of Fact Respondent has been a licensed chiropractor in Florida since 1978, holding license number CH0002696. Petitioner requires licensed chiropractors to file Mandatory Practitioner Profile Questionnaire Packets (Profiles). The subject Profile was due on or before April 15, 1999. The Profile asks the licensee to supply various items of information and answer several questions. Section II of the Profile requires information concerning "medical education." In response to the question of what medical school Respondent attended, he wrote: "Logan 'Quack Con-Artist' School of Chiropractic." In response to the type of his degree, Respondent wrote: "Quack Con-Artist Chiropractic Degree." In response to questions concerning medical training, Respondent answered: "'Fraudulent' Automobile Personal Injury Cases (Robbing Insurance Companies)" and "'Fraudulent' Workers Compensation Cases (Robbing Insurance Companies)." Respondent also added to these responses, as well as the responses cited in the preceding paragraph, the following: "Caveat: see letter dated April 7, 1999 sent to Gloria Henderson, Division Director)." Section VIII of the Profile requires information concerning criminal offenses. This section asks: "have you ever been convicted or found guilty, regardless of whether adjudication of guilt was withheld, or pled guilty or nolo contendere to a criminal misdemeanor or felony in any jurisdiction?" The question then states: "If "YES," briefly describe the offense(s), indicate whether the conviction is under appeal, and attach copy of notice of appeal." The form supplies three lines for each of these items of information. Respondent answered "no" to the first question in Section VIII and left the remainder of the section blank. The Profile concludes, immediately above the signature line: "I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 455.624, 458.327, 458.331, 459.013, 459.015, 460.413, 461.013, 775.082, 775.083 and 775.084, Florida Statutes." Respondent signed on the signature line and added the date of April 7, 1999. Immediately beneath the signature line, Respondent added: "Notice: Signed under caveat--see letter dated April 7, 1999 sent to Gloria Henderson, Division Director." Respondent's four-page letter to Gloria Henderson dated April 7, 1999, references the Profile, notifies Ms. Henderson and Petitioner of Respondent's intent to sue, and demands that Petitioner omit Respondent's listing from a website of chiropractors because, in part, "I do NOT accept their 'valueless treatment' known as an "adjustment" (it is a waste of money and time), and because I practice health care from an "Allopathic" (medical approach) point of view, including but not limited to, surgery, drug prescription, physical therapy " Respondent states in the letter that the Petitioner's failure to incorporate his comments in all computer files listing him as a chiropractor will result in his filing a federal action under tort and constitutional law seeking $1 million plus punitive damages. The final caveat in the April 7 letter states: My (Roy A. Day) signature on the instant letter, and the associated completed questionnaire, reflects the denial of Roy A. Day to have meaningful access to so-called "licensed attorney" courts of law, and the associated denials of each and all discovery, and trial by jury, and the right to each and all appeals, and the denial to write a brief on appeals, and each and all associated "railroading" of Roy A. Day, with the overlay for "licensed attorney" courts of law to deny the law, facts and evidence existed when they pertained to Roy A. Day, since Roy A. Day is not represented by a so-called "licensed attorney" at $300.00 per hour in artificial-monopolistic legal fees. In addition, the signature reflects each and all associated "forced and coerced" action, specifically, Roy A. Day has been denied "due process and equal protection of the law." On February 6, 1995, Pinellas County Circuit Court entered an Order of Probation. The Order states that Respondent pleaded guilty to aggravated stalking, interception of oral communication, and uttering a check with a forged endorsement. The Order withholds adjudication and places Respondent on probation for two years. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of two counts of the third-degree felony of uttering a check with a forged endorsement, in violation of Section 831.02, Florida Statutes. The checks totaled approximately $20,000, and, sometime between March 13 and May 5, 1993, Respondent passed each check knowing that the signature of his brother, Donald Day, was forged. For each count, the court sentenced Respondent to one year in jail with credit for 130 days he had already served in jail, and the sentences ran concurrently. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of the third-degree felony of aggravated stalking, in violation of Section 784.048(3), Florida Statutes. The stalking consisted of repeated and harassing telephone calls that Respondent made to the house of a person who had, at one time, expressed interest in purchasing a home in which Respondent had an interest, but later decided not to pursue the purchase. The court sentenced Respondent to one year in jail with credit for 133 days that he had already served in jail, and this sentence ran concurrently with the sentences for uttering a check with a forged endorsement. Petitioner lacked a copy of a judgment concerning the interception of oral communications. This offense arose out of Respondent's surreptitious recording of a conversation that he had with a police officer who was investigating the stalking charges. Absent a copy of the judgment, however, insufficient evidence of this conviction exists for the purpose of this disciplinary case. At the final hearing, Respondent explained that he did not disclose these criminal convictions on the Profile because doing so would somehow implicate him as a "co-conspirator" in the injustices perpetrated upon him by the authorities involved in prosecuting these offenses. Respondent falsely failed to disclose on the Profile his convictions for aggravated stalking and uttering a check with a forged instrument. His failure to disclose this information constitutes fraudulent concealment of these criminal offenses. In a fairly straightforward case, Respondent has filed nearly 250 pleadings containing thousands of pages. He also abused the subpoena power of this tribunal by subpoenaing judges and court officials from every level of the federal and state judiciaries. Last but not least, Respondent has defamed and discredited numerous persons without apparent reason, although some question exists whether Respondent is capable of exercising consistent control over the impulses leading to at least some of these utterances. The crimes of which Respondent was convicted may have arisen out of family disagreements, possibly concerning the sale of a family home. Respondent may be obsessively preoccupied with actual or perceived injustices that he suffered as a result of this transaction. Undoubtedly, Respondent compulsively litigates everything that has the most remote bearing upon this transaction, using court files as archives for materials that he believes will vindicate him, despite an ardent and often- expressed repulsion for judges, lawyers, and others connected with the legal system. No penalty but revocation is suitable under the circumstances, absent a showing by Respondent that he has commenced or is continuing therapy and that the prognosis is reasonably good. The record lacks such evidence. Respondent is not unintelligent, nor is he entirely devoid of insight. His thinking, although at times disordered, is capable of impressive organizational efforts, as best revealed by his meticulous organization in his proposed recommended order of what otherwise seemed to be a bewildering variety of materials that Respondent has seen fit to file in this case. Although his behavior seems at times compulsive, Respondent was capable of a certain level of self-restraint, at least during the hearing and when not directly confronting the underlying transaction or crimes. If they occur at some point in the future, successful diagnosis and treatment of Respondent should inform Petitioner's interpretation of the events and behaviors described in this Recommended Order, if Respondent seeks relicensure as a chiropractor.
Recommendation It is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Respondent guilty of violating Section 460.413(1)(j), Florida Statutes, and revoking his license. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2001. COPIES FURNISHED: Joe Baker, Jr. Executive Director Board of Chiropractic Medicine 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Theodore M. Henderson Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Wings S. Benton, Senior Attorney Agency for Health Care Administration Office of General Counsel Medical Quality Assurance Practitioner Regulation--Legal Post Office Box 14229 Tallahassee, Florida 32317-4229 Roy A. Day Post Office Box 33 Tarpon Springs, Florida 34688-0033
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 13-16, 1992, petitioner, James S. Moore, a chiropractic physician, was a candidate on the chiropractic licensure examination. Doctor Moore is a recent graduate of Life Chiropractic College and was taking the examination for the first time. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Chiropractic (Board). On July 2, 1992, DPR issued a written uniform grade notice advising petitioner that while he had received passing grades on the X-ray interpretation and technique portions of the examination, he had received a score of 70.5 on the physical diagnosis portion of the test. A grade of 75.0 is necessary to pass this part of the examination. By letter dated September 23, 1992, petitioner requested a formal hearing to contest his score. In his letter, Dr. Moore generally contended that he had been denied licensure without any reason or explanation, and that during the review process his contentions were not given meaningful consideration. As further clarified at hearing, petitioner contended that he should have received higher scores on procedures 1, 2, 7, 10, 15, 17 and 18 of the physical diagnosis portion of the examination, and thus he should have received a passing grade. That portion of the test is a practical examination requiring the candidate to give verbal and demonstrative responses to a series of questions designed to test the candidate's diagnostic skills. Among other things, the candidate is required to perform certain tests and procedures on a volunteer patient. To memorialize a candidate's performance, the examination is videotaped, and a copy of petitioner's performance is found in joint exhibit 1 received in evidence. Petitioner generally contends that he should have received a higher grade on the above questions. To support his position, petitioner testified on his own behalf and presented the testimony of his uncle-employer, a chiropractic physician in Jacksonville, Florida, who has seven years experience in the field. Respondent offered the testimony of a Miami chiropractic physician who has been a grader on the examination for the last twelve years and was accepted as an expert in the field of chiropractic. It is noted that both physicians reviewed petitioner's examination prior to giving testimony. However, respondent's expert did not regrade the examination but rather evaluated the questions, petitioner's responses and the grades of the two examiners who graded petitioner to determine if the scores were within acceptable guidelines. As might be expected, the two physicians offered conflicting opinions regarding petitioner's examination scores. In resolving the conflicts in the testimony, the undersigned has accepted the more credible and persuasive testimony, and this testimony is embodied in the findings below. There are two independent chiropractors who grade each candidate on the physical diagnosis part of the examination. Each examiner is given one hour of standardization training prior to the examination, there is no discussion by the examiners during the examination itself, and they grade independently of one another. There is no evidence to support a finding that the two examiners who graded petitioner conferred with each other prior to assigning a grade or otherwise acted improperly in the performance of their duties. In order to preserve the confidentiality of the examination, the questions or information given to a candidate will not be repeated verbatim here but rather only a general description will be given. As to question 1, petitioner was penalized one point (or given a grade of three out of four points) because he stated that the normal range for a particular joint was at 100 degrees. He derived this answer from the American Medical Association Guidelines for Impairment, which is the standard used for disability evaluation. Because impairment standards are not synonymous with a normal range of motion, petitioner's response was incorrect and his score of three should not be changed. In procedure 2, the candidate was given a hypothetical case history of a female patient and was required to choose four appropriate orthopedic tests that related to her condition and to then perform each test. The question noted that if an incorrect test was selected, no credit would be given even if the test was performed correctly. Petitioner selected only two correct tests and accordingly received a grade of two out of four possible points. Respondent's expert confirmed that only two correct answers were selected, and thus petitioner's grade should not be changed. Among other things, procedure 7 required the candidate to use and interpret the Wexler scale, a reflex scale used by chiropractic and orthopedic physicians. Petitioner contended that the Wexler scale is considered zero to five, and he used this range to fashion his answer. Although at hearing respondent asserted that the scale is actually zero to four, it now concedes that petitioner's response was correct and that his grade on this question should be adjusted upward by 1.5 points. Procedure 10 related to diagnostic imaging and generally required the candidate to select the appropriate x-rays to be taken for a given set of facts. Because petitioner failed to take a necessary spot hip x-ray, he did not receive full credit on the question. At hearing, petitioner contended that the omitted x-ray would over-radiate the patient and that the large views taken of the patient would give sufficient detail of the primary complaint area. However, these contentions are rejected as not being credible. Therefore, the request to change the grade on this procedure should be denied. In procedure 15, petitioner was given certain information concerning a patient and was required to make a specific diagnosis to be written in the patient's records. The question also provided that if an incorrect diagnosis was selected, the candidate would receive no credit. In this case, petitioner failed to select the proper diagnosis. His response that the patient suffered from a "sprain/strain" of a particular muscle was incorrect since there is no such thing as a sprain of a muscle. Indeed, only joints and ligaments can be sprained. Although respondent's expert conceded that the correct answer was not "easy" to ascertain, all candidates faced the same level of difficulty on the question and thus no change in petitioner's grade is warranted. Petitioner next contends that he was given an incorrect grade on procedure 17, which required him to identify which physical examination procedures (more than one) he would use based upon a hypothetical patient history. The question provided that unless all procedures were identified, no credit would be given. Because petitioner did not state that he would take the patient's vital signs, a necessary procedure for a new patient, he properly received a zero score. Finally, procedure 18 used the same hypothetical patient history given in procedure 17 and required the candidate to demonstrate on a volunteer patient the necessary examination procedures. Of particular significance was the requirement that the candidate not only correctly perform the procedures, but also demonstrate those procedures in the usual and customary order. Unfortunately, petitioner performed the first of four procedures last, which would affect the reliability of the findings, and thus he received no credit. Therefore, petitioner's grade on this question should not be changed. In summary, with the exception of procedure 7, the scores given to petitioner on each of the challenged procedures are supported by logic and reason, and there is no justification in changing the overall score to a passing grade. In addition, the test was fairly administered in every respect to all candidates, including the provision in some questions that unless the entire question was correctly answered, no partial credit would be given. Thus, petitioner's contention that he should have received partial credit instead of no credit on several questions is without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order raising petitioner's grade on the physical diagnosis part of the May 1992 chiropractic licensure examination from 70.5 to 72.0 but denying his petition in all other respects. DONE and ENTERED this 4th day of January, 1993, at Tallahassee, Florida. DONALD R. ALEXANDER 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 4th day of January, 1993. Respondent: APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6162 1-2. Partially adopted in finding of fact 5. 3-4. Partially adopted in finding of fact 6. Partially adopted in finding of fact 7. Partially adopted in finding of fact 8. Partially adopted in finding of fact 9. Partially adopted in finding of fact 10. Partially adopted in finding of fact 11. NOTE: Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Vytas J. Urba, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Dr. James S. Moore P. O. Box 229 Doctor's Inlet, FL 32030 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0752
The Issue The issue in this case is whether Patrick Dennis (Petitioner) should be granted additional credit for any physical diagnosis practical examination questions which he answered on the May, 1990, chiropractic examination administered by the Department of Professional Regulation (Respondent), or whether, in the alternative, he should be permitted to retake the chiropractic practical examination at no additional charge.
Findings Of Fact Petitioner is a graduate of the New York Chiropractic College, is licensed to practice chiropractic in New York and New Jersey, and is seeking licensure as a chiropractor in the State of Florida. He took the chiropractic practical examination administered by the Respondent in May, 1990, receiving grades of 96.6% in X-ray interpretation, 95.3% in technique, and 63.75% in physical diagnosis. A grade of 75% on each portion of the practical examination is required to pass. After receiving notification that he had failed the examination, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam. It was established that the 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 solely disputed the score he received in the content areas of general physical examination and laboratory 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 1 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 5 content areas in the May, 1990, chiropractic 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, out of a possible 4 credits, the Petitioner received a grade of 1 and 1.5 from his two examiners in general physical examination, and grades of 1.5 and 2 from the examiners in laboratory diagnosis. In this case, the Petitioner has presented challenges to the grades he received on these two content areas of the practical exam, general physical examination and laboratory diagnosis. Since there are five portions of the physical diagnosis exam, and an average of 75%, or an average score of 3, is required to pass the examination, a cumulative average score of 15 (3 points times the 5 exam areas) is required. The Petitioner's cumulative average score was 12.75, or 2.25 points short of passage. Thus, he would have to receive an increase of 2.25 points in the average of the grades he received from the two examiners on the general physical examination and laboratory diagnosis portions of the exam, in order to receive an overall passing score. Regarding the general physical examination content area, the Petitioner was asked to describe how a prostate examination should be conducted. Petitioner understood that this was a rectal exam, but he testified that he was not trained to perform such examinations at New York Chiropractic College, and he had not seen one performed. Therefore, he could not, and did not, describe how to perform a prostate exam. The evidence is conflicting concerning whether New York Chiropractic College offered instruction in prostate examinations. The Petitioner testified that such instruction was not offered, but Dr. Todd Zazulia, who graduated from that college in 1978 and who is a licensed Florida chiropractor, testified that such instruction was offered at New York Chiropractic College. Documentary evidence received from the Dean of Academic Affairs at New York Chiropractic College, Dr. Anthony Onorato, confirms Dr. Zazulia's testimony. Dr. Salvatore D. LaRusso graduated from this same college in 1984, after Petitioner and Dr. Zazulia, and he testified that instruction in the examination of the prostate was not offered at that time. The Petitioner testified that he was taught to recognize signs and symptoms associated with prostate problems since they cause lower back pains, and that he was taught laboratory tests that would signify prostatic problems. He admitted that he felt an obligation to recognize potential problems from signs and symptoms associated with the prostate. The greater weight of the evidence supports the Respondent's position that the Petitioner was offered instruction in signs and symptoms of prostate problems, as well as rectal prostatic examinations, at New York Chiropractic College. Therefore, the Petitioner has failed to establish that he should not have been asked a question about prostate examinations on his practical examination. The Respondent introduced competent substantial evidence to establish that some chiropractors in Florida do perform prostate examinations, and that this practice is within the recognized scope of practice of chiropractic in Florida. Although a substantial number of chiropractors in Florida do not perform this examination, and although there is evidence that it is a violation of chiropractic licensing statutes and rules in a majority of states for chiropractors to perform prostate examinations, nevertheless there is no evidence that the Florida Board of Chirporactic has adopted any rule or taken any action against any chiropractor in Florida for performing such examinations. In fact, Dr. Phil Leon, a licensed Florida chiropractor and licensure examiner, testified that he has asked a question about prostatic examinations of almost every applicant he has examined over the past five years. Documentary evidence submitted by the Respondent from other examiners confirms Dr. Leon's testimony that such questions are a regular part of the chiropractic practical examination in Florida, and also indicates that prostatic examinations are covered on the exam given by the National Board of Chiropractic Examiners. Even Dr. Thomas P. Toia, who was called on behalf of the Petitioner, testified that the ability to recognize prostate problems is within the scope of the practice of chiropractic, and that prostate examinations are an authorized chiropractic procedure. Based on the evidence in the record, it is found that the Petitioner has not established that the grades he received on the general physical exam content area of the practical examination were arbitrary or capricious. Dr. Leon testified that he gave the Petitioner a grade of 1.5 because he did not know where the prostate was, could not describe how to perform a prostate examination, and did not evidence an awareness or understanding of the fact that pain in the low back area could be related to the prostate. Dr. Zazulia testified that he also would have given the Petitioner a grade of 1.5. Dr. Toia testified that when a candidate has no knowledge about a particular question, a grade of 1 is appropriate. Regarding the exam content area of laboratory diagnosis, the Petitioner was asked to identify the tests that should be given to diagnose gonorrhea and lupus. For gonorrhea, the Petitioner identified the chocolate agar test, and for lupus, the Petitioner identified the antinuclear antibody test (ANA). While these are correct answers, the Petitioner's grades in this content area were lowered to 1.5 and 2 by the two examiners because he failed to mention an additional test which can also detect systemic lupus, the LE prep test, and he failed to describe how the lab samples are taken and how these tests are performed in the laboratory. Based upon the evidence in the record, it is found that Petitioner has not established that the grades he received on the laboratory diagnosis content area were arbitrary or capricious. While Dr. Toia testified that he would have given the Petitioner higher grades on this content area, Dr. Zazulia supported the grades given. Dr. Zazulia testified that the Petitioner's failure to inform the patient about what they were likely to expect at the lab when they had the tests performed, and his inability to differentiate the test for gonorrhea as a smear, swab or blood test would result in a grade of 1.5. Because systemic lupus affects almost every system of the body, the Petitioner's failure to identify the LE prep test for complete screening was significant and would result in a grade of 2. There is competent substantial evidence in the record to support the grades which the Petitioner received on the laboratory diagnosis content area of the practical exam.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the May, 1990, chiropractic practical examination in the content areas of general physical examination and laboratory diagnosis. DONE AND ENTERED this 23rd day of April, 1991 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 23rd day of April, 1991. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1. This is a conclusion of law and not a proposed finding of fact. 2-4. Adopted in Finding 1. Adopted in Findings 1 and 5. Adopted in Finding 1. Adopted in Finding 7. Adopted in Finding 11. Adopted in Finding 11, but otherwise Rejected as not based on competent substantial evidence. Rejected as irrelevant and immaterial. Adopted in Finding 3, but otherwise Rejected as irrelevant and immaterial. Rejected as simply an excerpt of testimony and not a proposed finding. Rejected as citations to statutes and rules and not a proposed finding of fact. Adopted and Rejected in part in Finding 9, and otherwise Rejected as irrelevant and immaterial. 15-16. Rejected as irrelevant and immaterial. Rejected in Findings 8-10. Adopted and Rejected in Finding 8. Rejected as irrelevant and immaterial Adopted in Finding 2, but otherwise Rejected as irrelevant and not based on competent substantial evidence. 21-23. Rejected as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Findings 11 and 12. Copies furnished: Lawrence J. Langer, Esquire 400 Executive Center Drive Suite 210 West Palm Beach, FL 33401 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, 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
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
