The Issue Whether Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1997. The examination consisted of four parts: "x-ray interpretation"; "technique"; "Florida laws and rules"; and "physical diagnosis." The minimum passing score for each part was 75. Petitioner passed the "Florida laws and rules" and "technique" portions of the examination. She failed the "x-ray interpretation" and "physical diagnosis" portions of the examination, with scores of 63.20 and 70.50. respectively. As noted above, Petitioner's evidentiary presentation at hearing addressed only the "physical diagnosis" portion of the November 1997 licensure examination. On this portion of the examination, candidates demonstrated their knowledge of physical diagnosis by responding to test questions, in the presence of two examiners, either verbally or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the examiners' scores. Prior to the administration of the "physical diagnosis" portion of the November 1997 licensure examination (PD Test), examiners were provided with written instructions (Examiners' Instructions) regarding their role in the examination process and the standards they should follow in grading candidates' performance. In addition, examiners were required to attend a pre-examination organizational meeting at which they were provided with further instructions and training designed to enhance grading standardization. Questions 11 through 13 on the PD Test covered the subject of orthopedics. Candidates were presented with a written case history to which they were to refer in responding to these questions, as well as to all subsequent questions on the PD Test (including those at issue in the instant case). In question 11, candidates were asked to select (from a list) four orthopedic tests which, under the circumstances presented in the case history, were appropriate to administer to the "patient." As Petitioner conceded at hearing, of the four tests she selected, only three were appropriate. The fourth test she selected, Yergason's Test, was not an appropriate test to administer in view of the "patient's" case history. In question 12, candidates were asked to demonstrate on the "patient" how they would administer the tests they selected in response to question 11. Question 12 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting and properly demonstrating four appropriate tests; three points for selecting and properly demonstrating three appropriate tests; two points for selecting and properly demonstrating two appropriate tests; and one point for selecting and properly demonstrating one appropriate test. Both examiners awarded Petitioner two points for her response to question 12. Although she selected three appropriate tests, she properly demonstrated only two of these three tests. The test she did not properly demonstrate was Tinel's Sign. The "patient's" case history suggested that ulnar nerve, not median nerve, testing needed to be done on the "patient." There are five types of Tinel's Sign tests. One is designed to test the ulnar nerve and involves tapping on the "funny bone." Another is for testing the median nerve and involves tapping on the wrist. Petitioner demonstrated the type of Tinsel's Sign test used to probe the median nerve, when she should have demonstrated the type used to test the ulnar nerve. Because she selected only three appropriate tests and demonstrated only two of these tests properly, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 12. Question 13 required candidates to state what conditions would be suggested by positive results from the tests selected and demonstrated. Question 13 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting four appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; three points for selecting three appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; two points for selecting two appropriate tests and correctly stating, as to each, what condition would be indicated by positive results; and one point for selecting one appropriate test and correctly stating, as to that test, what condition would be indicated by positive test results. Both examiners awarded Petitioner two points for her response to question 13. Petitioner did not correctly name the condition suggested by a positive Cervical Compression test, one of the three tests she correctly selected in response to question 11. Because Petitioner selected only three appropriate tests and, with respect to one of these tests (the Cervical Compression test), failed to correctly state what condition would be indicated by positive test results, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 13. Questions 14 through 16 on the PD Test covered the subject of range of motion. In question 16, candidates were asked to explain the difference and significance between active range of motion and passive range of motion. Question 16 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for answers to question 16. Neither examiner awarded Petitioner any credit for her response to question 16. In responding to the question, Petitioner gave an accurate explanation of the difference between active range of motion and passive range of motion (by noting that the former, unlike the latter, is performed by the patient without assistance), but she did not accurately explain the significance of the difference, as required by the second part of the question. Petitioner incorrectly stated, in attempting to answer this part of the question, that active range of motion is characterized by ligament involvement. Because Petitioner did not correctly answer question 16 in its entirety, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for this question. Questions 17 through 19 on the PD Test covered the subject of neurology and focused upon muscle testing. Question 17 required candidates to name all relevant muscles that that they would test in light of the case history with which they were presented (which reflected that the "patient" had neck pain and numbness radiating down her right arm into her ring finger and little finger). Question 17 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for naming four relevant muscles; one and a half points for naming three relevant muscles; one point for naming two relevant muscles; and a half point for naming one relevant muscle. Neither of the two examiners awarded Petitioner any credit for her response to question 17. There was no connection between the muscles Petitioner named and the nerve root that the symptoms (described in the case history) suggested was the cause of the "patient's" problems. Inasmuch as Petitioner named no relevant muscles, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for question 17. Question 18 required candidates to demonstrate on the "patient" how to test two muscles selected by the examiners. Petitioner was asked to test the "patient's "triceps muscle and the interossei muscles of the "patient's" hand. The Examiners' Instructions provided that candidates should be awarded two points (full credit) for correctly demonstrating both tests and one point for correctly demonstrating one of the two tests. One examiner awarded Petitioner two points for her demonstration in response to question 18. The other examiner did not award Petitioner any points. Accordingly, Petitioner received one point (the average of the two examiners' point awards) for her response to question 18. Petitioner tested the interossei muscles of the "patient's" hand in a manner that is unconventional, but nonetheless acceptable. She did not test the "patient's" triceps muscle correctly, however, inasmuch as she did not, during her demonstration, do what was necessary to isolate that muscle. Because she performed only one of the two tests correctly, awarding Petitioner more than the one point she has already received for her response to question 18 would be inconsistent with the grading guidelines set forth in the Examiners' Instructions. To receive credit for question 19, candidates had to explain and interpret a grade level of muscle testing selected by the examiners. (There are six such grade levels: zero through five. The examiners were instructed to select one of these six grade levels.) Petitioner was asked by the examiners to explain and interpret grade level three testing. Question 19 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for responses to question 19. One examiner awarded Petitioner one point for her response to question 19. The other examiner did not award Petitioner any points. Accordingly, Petitioner received a half point (the average of the two examiners' point awards) for her response to question 19. Petitioner incorrectly stated, in response to question 19, that grade level three testing involves range of motion without gravity. Grade level three testing actually involves range of motion with gravity. Accordingly, pursuant to the scoring guidelines set forth in the Examiners' Instructions, Petitioner should not have received any credit for her response to question 19. Questions 20 and 21 on the PD Test covered dermatomes and sensory testing. Question 20 required candidates to name all relevant dermatome patterns that they would test for in light of the "patient's" case history and to demonstrate one of these tests (selected by the examiners) on the "patient." Petitioner was asked to demonstrate dermatome C5 testing. Question 20 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for correctly naming all relevant dermatome patterns and correctly demonstrating the selected test, and one point if they correctly named all relevant dermatome patterns or correctly demonstrated the selected test (but failed to do both). One examiner awarded Petitioner two points for her response to question 20. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 20. Petitioner correctly named all of the relevant dermatome patterns, but she incorrectly demonstrated dermatome C5 testing inasmuch as she focused upon the trapezium ridge, rather than the lateral aspect of the arm. Accordingly, pursuant to the grading guidelines set forth in the Examiners' Instructions, Petitioner should have received one point for question 20. Question 21 was worth two points. One examiner awarded Petitioner two points for her response to question 21. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 21. Respondent concedes that Petitioner should have received full credit (two points) for her response to question 21, and there is no evidence indicating otherwise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue The issue presented is whether or not Petitioner passed the 1987 chiropractic examination.
Findings Of Fact Petitioner, Mary Campilii, was a candidate for the May 14-17, 1987 chiropractic examination. Petitioner achieved an overall score of 72, as reflected by an upward revision to her original score of 66, on the practical section of the examination. Petitioner achieved a score of 76 on the Florida laws and rules section of the examination. A minimum score of 75 is required to pass both the practical and laws and rules sections of the examination. Petitioner has challenged the method of grading utilized by the Respondent contending that it is subjective as it elates to her, and did not properly reflect her level of achievement and knowledge to the questions that she answered on the May 1987 examination. Petitioner failed to demonstrate that she demonstrated expert or superior knowledge in her answers to any of the questions on the May 1987 exam that she now challenges. The oral practice examination for chiropractic certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for license certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3, which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimum competency and a score of 4 is given when a candidate demonstrates superior or expert knowledge in the subject area tested. Petitioner presented Thomas P. Toja, an expert in grading chiropractic examinations for the Board, who offered his opinion that had the grading system utilized by Respondent been different, i.e. a system whereby a candidate could be accorded a score somewhere between a 3 and 4, when such candidate has demonstrated more than minimum competency but less than superior or expert knowledge in the subject area tested, a candidate, such as Petitioner, could have achieved an additional 3 points to her score of 72, and thereby received a passing score of 75. Petitioner has not, however challenged validity of the existing rule which permits Respondent to utilize the grading procedures applied in this case. Stephen Ordet, a licensed chiropractor in Florida for more than 7 years was received as an expert in the grading of chiropractic examinations in Florida, and was one of the graders during the May 1987 examination. Ordet's opinion, which is credited, was that Petitioner did not earn a score of 4 on any of the questions that she now challenges, and was correctly assigned a score of 3 for each of the responses she gave to questions she challenged. Thomas P. Hide, a chiropractor who specializes in the area of sports related injuries, was tendered and received as an expert in the area of reviewing x-rays and the grading of the chiropractic examination. Hide credibly testified and it is found that Petitioner was properly assigned a score of 3 on questions 8, 12, 20, 22, 28, 29, 30 and 33.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that she met the minimum criteria to pass the challenged chiropractic examination and deny her request for licensure. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Mary Camiplii 2921 Buckridge Trail Loxahatchee, Florida 33470 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of paragraphs (i), (m), (n), (r), and of Section 460.413(1), Florida Statutes, as set forth in a five-count Administrative Complaint.
Findings Of Fact The Respondent is a licensed chiropractic physician, having been issued license number CH 0002560. He has been so licensed at all times material to this proceeding. On or about March 4, 1994, patient L. M. was involved in a motor vehicle accident. On November 7, 1994, patient L. M. presented to the Respondent with the following ten major complaints: frequent headaches, neck pain, black stool, upper- back pain, mid-back pain, lower-back pain, painful feet, bilateral thigh pain, bilateral knee pain, and bilateral calf pain. The Respondent presented his fee schedule to patient L. M. and the patient signed a copy of the fee schedule. The fee schedule stated, among other things, that missed appointments would be charged to the patient. The patient was a nursing assistant who had been treating herself at home with hot water and Tylenol. On November 7, 1994, the Respondent took a surgical and medical history, a history of the March 4, 1994, accident, a history of the onset of symptoms, and a history of the home care the patient had been attempting. The Respondent reviewed the nature of the patient's pain and how each area of her body was affected by her activities. The Respondent decided to perform physical, orthopedic, and neurological examinations of the patient. He also decided to obtain x-rays of her pelvis, of the lumbar, dorsal, and cervical areas of her spine, and of both of her knees. On November 8, 1994, the Respondent saw the patient again, at which time he began an examination of the patient by noting her height and weight, making a structural visual evaluation, checking her motor coordination, performing a cardiovascular examination, measuring her extremities, performing a sensory examination, and checking her reflexes. On November 8, 1994, the Respondent also took x-rays of the patient and read the x-rays that same day. The x-rays revealed subluxations. Based on the information he had obtained up to that point, the Respondent elected to commence treatment to the patient's lumbar spine. On November 8, 1994, he adjusted the patient's lumbar spine and also applied ultra sound and low voltage to the patient's lumbar spine. Where there are many complaints involving several areas of the patient's body, it is not unusual for a chiropractic physician to begin treatment prior to the completion of the full examination. It is not a deviation from the appropriate standard of care for a chiropractic physician to begin treatment prior to the completion of the full examination under such circumstances. Under the circumstances presented by the patient in this case, it was reasonable for the Respondent to commence treatment to her lower back on November 8, 1994, and to complete the examination the following day. On November 9, 1994, the Respondent did range of motion measurements and performed various orthopedic tests. He also performed a series of muscle tests. Based on the information he received on November 7, 8, and 9, 1994, the Respondent developed a treatment plan and treatment goals. His treatment plan called for adjustment to subluxated vertebrae and knees, ultrasound for tissue repair, low voltage muscle stipulation for spasm, traction to decrease intersegmental joint irritation, and acupressure for stimulation of the acupuncture points. He also proposed to brace the knees and the lumbar spine. The Respondent noted in his records that his treatment goals were to stabilize the patient's condition, increase range of motion, promote tissue repair, decrease spasm, and reduce subluxation. The Respondent also recorded a treatment frequency plan which provided for daily treatment for the first one or two weeks, followed by three weeks of treatment at a frequency of three times per week. The frequency plan was to be reevaluated at the end of one month. The Respondent's records provide a reasonable rationale for the services provided to the patient on November 7, 8, and 9, 1994. The course of treatment of the subject patient consisted of chiropractic adjustments and physiotherapeutic modalities such as low voltage, ultrasound, and traction. Chiropractic adjustment is performed to promote the reduction of subluxations, to increase the healing processes within the body, to increase the normal transmission of nerve impulses, and to reduce spasm. Ultrasound is administered to affect tissue where two dissimilar tissues come together. Low voltage stimulation is designed to relax tissue. All of the treatments administered by the Respondent were designed to meet the treatment goals he had previously established. Such treatments were consistent with a therapeutic outcome. The Respondent's course of treatment was appropriate for the various complaints and symptoms presented by the subject patient. The x-rays taken by the Respondent were appropriate under the circumstances presented by the subject patient. Justification for those x-rays is contained in the patient records. On December 16, 1994, the patient was involved in a second motor vehicle accident. The Respondent's records contain a history regarding the second accident. The Respondent obtained a copy of the accident report regarding the second accident. He also obtained x-ray reports from the hospital to which the patient was taken after the second accident. The Respondent noted in the patient records that he was going to continue with the same course of treatment following the second accident. That was a reasonable course of action under the circumstances of this case. Following the second motor vehicle accident, the Respondent concluded there was reason to suspect that the patient had a herniated disc. This conclusion was based on the chronicity of the patient and the acuteness of her problems. Accordingly, the Respondent ordered an MRI. The Respondent's patient records document a reasonable basis for the tests he ordered for the patient. The testing was reasonably calculated to assist in arriving at a diagnosis and treatment plan for the patient. The Respondent's patient records are legible in all material details. The few instances of illegible words do not materially affect an understanding of what is written in the records. The Respondent's patient records are sufficient to meet the record-keeping requirements of the rules that were in effect at the time the records were created. On or about November 7, 1994, the Respondent billed the patient's insurance company for a detailed one-hour consultation. On or about November 8, 1994, the Respondent billed the patient's insurance company for a half-hour consultation, a spinal adjustment, and two therapeutic modalities. On or about November 8, 1994, the Respondent also billed the patient's insurance company for skull, neck, thoracic, lumbar, left and right knee, and pelvic x-rays. On or about November 9, 1994, the Respondent billed the patient's insurance company for completion of the detailed physical, orthopedic, and neurological examination. Each time the patient visited the Respondent's office, the Respondent billed for an office visit. On numerous occasions, the Respondent billed the patient's insurance company for an office visit and for manipulations on the same day. On or about December 6, 1994, the Respondent billed the patient's insurance company for an office visit and for a re-examination. On or about January 3, 1995, the Respondent billed the patient's insurance company for an intermediate office visit and a consultation. On or about January 18, 1995, the Respondent billed the patient's insurance company for multiple vertebral segment manipulations. The Respondent has his own unique billing system in place. He does not use the current procedural terminology codes that are generally used by other chiropractic physicians in their billing.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997.
Findings Of Fact The parties have stipulated to the facts in this case as follows: The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County. The advertisement was published on September 16, 1987. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center". The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..." Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control". Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1991. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive Suite 177 Laguna Niguel, CA. 92677-2040 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner is entitled to a passing grade on the chiropractic examination.
Findings Of Fact Petitioner took the November 1999 examination for chiropractic licensure. He passed the written part and the technique portion of the practical part. However, Petitioner failed the physical diagnosis and X-ray interpretation portions of the practical part. The physical diagnosis portion of the examination supplies candidates with a brief case history followed by several questions. Score sheets provide standards for the scoring of responses. Question 3 of the physical diagnosis portion of the examination requires the evaluators to ask the candidate to demonstrate and describe an abdominal examination and explain the significance of a digital rectal examination on the patient, who has complained of cramping, bloatedness, and distention, as well as alternating stool consistency with an irregular pattern of defacation. The evaluators assigned Petitioner no points for his responses to Question 3. For the demonstration of an abdominal examination, Petitioner failed to ensure that the abdominal muscles were relaxed in order to permit a useful examination. Petitioner attempted to listen to the spleen, prior to performing percussion and palpation, but he was not in the left lower quadrant, which is the location of this organ. Petitioner palpated the abdominal area with his fingertips, rather than his palms, and failed to perform deep palpation. Petitioner also failed to outline the liver in his demonstration. The purpose of the digital rectal examination, for this patient, was to detect blood or a palpable lesion. Petitioner incorrectly responded that the purpose of this examination was to perform a prostate examination. Petitioner's misdiagnosis of diverticulitis, in response to Question 8, reflects his limited insight into this patient's condition, for which the correct diagnosis was irritable bowel syndrome, colitis, or spastic colon. Question 17 of the physical diagnosis portion of the examination required a demonstration of the gluteus maximus and peroneus muscles. The evaluators credited Petitioner for the correct demonstration of the gluteus maximums, but not the peroneus. Petitioner incorrectly grasped the patient's calf and ankle, which precluded the isolation of the peroneus. Failing to grasp the metatarsal end of the foot prevented Petitioner from properly isolating the peroneous muscle. At the hearing, Respondent gave Petitioner full credit for his response to Question 24 of the physical diagnosis portion of the examination. Question 3 of the X-ray interpretation portion of the examination required Petitioner to examine two X-ray films, taken two years apart, and render a probable diagnosis. The vast destruction of bone mass suggested a case of neuropathic joint resulting from syphillis, but Petitioner diagnosed post-traumatic joint disease, focusing instead on the patient's physically demanding profession and her age of 37 years. However, the extensiveness of bone destruction over a relatively short period favored the diagnosis of neuropathic joint over Petitioner's diagnosis. Question 5 of the X-ray interpretation portion of the examination required Petitioner to identify the anatomical structures outlined at lumbar-3 on a specific X-ray. Petitioner identified the structures as lamina, but they were the pars interarticulares, which are isthmus between the lamina and pedicle. Question 38 of the X-ray interpretation portion of the examination required Petitioner to explain why the neural foramen, as revealed on an X-ray, appeared enlarged. Rather than cite the nondevelopment of the cervical-6 pedicle, Petitioner incorrectly chose neurofibromatosis, despite the failure of the exposed structures to reveal the angularity characteristic of this condition and the absence of any bony structure subject to the process of deterioration resulting from neurofibromatosis. Despite the concession by Respondent on Question 24 on the physical diagnosis portion of the chiropractic licensure examination, Petitioner has failed to prove that he is entitled to additional credit on the physical diagnosis or X-ray interpretation portion of the chiropractic licensure examination that he should have passed either portion of the examination.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order dismissing Petitioner's petition. DONE AND ENTERED this 26th day of September, 2000, 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 26th day of September, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Chiropractic Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Gregory W. Stancel 2256 Iris Way Fort Myers, Florida 33905 Cherry A. Shaw Senior Examination Attorney Department of Health General Counsel's Office 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether Petitioner is entitled to receive a passing score on the Physical Diagnosis portion of the November 2000 chiropractic licensure examination.
Findings Of Fact petitioner is currently licensed to practice chiropractic medicine in four states. Some of his licenses are voluntarily inactive. He is a graduate of Life University, School of Chiropractic, in Georgia. From 1992 to 1999, he taught classes in Clinical and Orthopedic Diagnosis and other clinical classes at that institution, and his final position was Director of Admissions. He currently maintains a chiropractic practice in Georgia. In November 2000, Petitioner took the Florida chiropractic licensure examination. By a January 12, 2001, examination grade report the Department notified Petitioner that he had failed the Physical Diagnosis portion of the licensure examination. The minimum passing score for the Physical Diagnosis portion was 75.00. Petitioner had scored 72.00. As such, Petitioner had failed that portion. The November 2000 chiropractic licensure examination consisted of four portions: Laws and Rules; X:-ray Interpretation; Physical Diagnosis; and Technique. Pursuant to Rule 64B2-11.003, Florida Administrative Code, candidates are required to pass all four portions of the examination. Accordingly, Petitioner's failure of only one portion resulted in his failing the examination. At the disputed-fact hearing, Petitioner narrowed his challenge of disputed questions to Tasks 6 and 7 of the Physical Diagnosis portion of the examination. Petitioner withdrew his challenge to any other portions. Therefore, to pass the entire examination, Petitioner would have to prove entitlement to three points on these two tasks. Task 6 is worth three points. Task 7 is worth two points. Petitioner contended that Tasks 6 and 7 were not worded so as to call for a precise response; that the examination questions related to those tasks were subject to different, but equally correct, assessments or clinical judgments than those approved by the Department, and that he had given equally correct assessments/clinical judgments as his examination answers; and that the scoring of the examination was flawed. Prior to the examination, candidates were provided with a Candidate Information Booklet (CIB). This preparatory booklet explains what the examination will be like, explains how it is scored, and states: The references listed below may be used to prepare for the examination. This list is not considered to be all-inclusive. Following this statement is a list of professional texts divided into categories of "Acupuncture," "Physical Diagnosis," "Technique," and "X-ray Interpretation of Chiropractic and Pathology Films." The Physical Diagnosis portion of the November 2000 chiropractic licensure examination is a practical examination which tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical patient's case history. The case history for the Physical Diagnosis portion is followed by a series of related questions. For this examination, Task 1, the case history, was related to Tasks 6 and 7, because it provided critical information relating to the history of the patient whom Tasks 6 and 7 asked the candidate to evaluate. Task 6 asked the candidate to respond to the question, "What laboratory tests or diagnostic procedures, if any, would assist in the diagnosis?" Petitioner testified that he had taken a "medical" approach to this question, which should be appropriate from the viewpoint of the "Board of Chiropractic Medicine." From Petitioner's viewpoint, Task 6; was vague and the time limitations of the examination did not allow him to go back and review the preceding patient history which might have caused him to answer differently. However, he conceded that even if he had gone back and-re-read the patient history, he probably would have answered the same way. Petitioner also conceded that candidates had the opportunity to write notes on scratch paper and were allowed to refer back to their notes for gathering or taking additional information about the patient history as they progressed through the subsequent examination. tasks/questions. Petitioner answered Task 6 by listing specific laboratory test(s) he felt were warranted, whereas the Department's scan sheet or answer key stated that the correct answer should have been "None." The Department's reviewers concluded that Petitioner's answer meant that he had given laboratory tests when none were required, based on the examination information as a whole. Task 7 asked the candidate to respond to the question, "State your reasoning for choosing these tests." Petitioner's actual answers to Task 7 were not offered at hearing. However, at hearing, Petitioner gave his reasons for ordering laboratory tests as not being satisfied with one diagnosis; because a chiropractor should pursue tests to rule out other conditions in a deductive rather than inductive manner; and because a chiropractor is obligated to make a "differential" diagnosis in every case to determine the etiology of the primary diagnosis, i.e. a tumor, so that he can speak intelligently with other health care professionals, such as a medical physicianoncologist, to whom the chiropractor will refer the patient. Petitioner's additional reasons given at hearing for the laboratory tests he would have administered (Task 6) are those given above in Finding of Fact 7. The Department's approved answer for Task 7 was again negative of any reasons for laboratory tests because, in its answer-book, there should have been no laboratory tests ordered on Task 6. Despite his discounted answers to the challenged questions, Petitioner ultimately reached the correct diagnosis for the patient to whom Tasks 1, 6, and 7 applied. He reached the correct diagnosis after receiving further information on examination tasks subsequent to Tasks 6 and 7, but he still reached the correct diagnosis without running any actual laboratory tests or receiving any hypothetical laboratory test results. At the stage of Tasks 6 and 7, he was told by examiners either that no laboratory test results were available or that all laboratory tests were normal. His reaching the correct diagnosis under these conditions demonstrates that reaching a correct diagnosis without the laboratory tests he ordered certainly was possible. Petitioner testified that in formulating his answers to Tasks 6 and 7, he had relied on a standard text, Differential Diagnosis in Primary Care, Second Edition, R. Douglas Collins, M.D. F.A.C.P.; published by J. B. Lippincott Company, which text had been used to instruct him and from which text Petitioner also had taught his chiropractic students. This text is not listed in the CIB. Petitioner also discussed portions of eight other professional health care texts which he felt supported his answers to Tasks 6 and 7. None of these texts were listed in the CIB. Although the CIB is not "all-inclusive" of generally accepted chiropractic texts, the texts listed. thereon may be presumed to be generally accepted. Texts. not listed thereon do not benefit from the CIB's "imprimitur" of general professional acceptance and reliability. Petitioner only asserted that the texts upon which he relied were used in many (not all) chiropractic schools. The Departments expert in chiropractic, Dr. Scott L. Drizin, testified that of the nine texts utilized by Petitioner, only P-5, Griffith's Five Minute Clinical Consult, by Mark A. Dambro, published by Williams & Wilkins, 1997, pages 628-630, constituted a generally-accepted learned treatise recognized and authoritative for use in the practice of chiropractic medicine for Florida chiropractors, and that P-3 and P-4, also texts relied upon by Petitioner, were so specialized as to rarely, if ever, be used by chiropractors. He did, however, testify that possibly P-2, Mosby's Manual of Diagnostic anal Laboratory Tests, by Kathleen and Timothy Pagana, published by Mosby Publishing Co. 1998, might have limited value to Florida chiropractors. Neither of these texts is listed on the CIB. For purposes of his own testimony, Dr. Drizin relied upon three texts, Bates, Guide to Physical Exam History Taking, (R-15); a 1995 edition of P-5, the Griffith's Five Minute Clinical Consult, which was numbered R-16; and The Merck Manual (R-17), which texts were admitted over Petitioner's objection. Of the texts utilized by Dr. Drizin, only R-15 and R-17 are listed on the CIB and only P-5/R-16 is accepted as authoritative by both Petitioner and by Dr. Drizin. However, Dr. Drizin testified credibly that all three of the texts he had used were generally-accepted as learned treatises recognized and authoritative for use in the practice of chiropractic medicine for Florida chiropractors. It is therefore found that an insufficient predicate was laid to establish that any texts other than P-5/R-16, R-15, and R-17, constituted generally accepted chiropractic texts, sufficiently reliable for making findings of fact.' Dr. Drizin is a Florida-licensed chiropractor. He has practiced in Florida for thirteen years. In addition to his doctorate of chiropractic medicine, he holds a master's degree in biomechanical trauma. He is a member, and has held office in, multiple professional chiropractic associations and has published extensively in his professional field. He is currently a licensing examiner, consultant, and coordinator for the Department. He has testified as an expert on licensing examination challenges approximately 25 times. Accordingly, by education, training, and experience, his testimony has been accorded great weight. Upon the greater weight of the credible evidence as a whole, it is found that Petitioner's responses to Tasks 6 and 7 are incorrect and the Department's answers are correct for the following reasons. Dr. Drizin, and the reliable medical references that support his opinion, established that the principal source of diagnosis information is commonly found in the history of the patient, which was described in detail in examination Task 1. At least two of the texts upon which he relied affirmatively demonstrate that the Department's answers to Tasks 6 and 7 are correct. Dr. Drizin also explained credibly and persuasively that the case progression format from Task 1 through Tasks 6 and 7, and beyond, is designed to eliminate any perception of vagueness by the candidate, so that by the time the candidate has progressed to Task 6, he or she has more than enough information to come up with a correct diagnosis without laboratory tests. The four symptoms provided prior to Task 6 disclosed a classic syndrome, which syndrome is often used in testing physicians for the type of diagnosis sought. The four symptoms are not usually found together in the same patient. Therefore, when all four symptoms are found together in the same patient, it is so unusual that they point to only one diagnosis, without the need for the laboratory tests which Petitioner responded with for Task 6. Also, some of the tests Petitioner ordered would come back as "normal" in early stages of the condition Petitioner was asked to diagnose. Therefore, the laboratory tests that Petitioner would have conducted were neither appropriate nor effective at the early stage of the disease described in Task 1 or the early stage of the examination (Tasks 6 and 7) in the diagnosis process simulated on the examination. Although Dr. Drizin, in effect, conceded that the laboratory tests Petitioner ordered would do no harm and might be peripherally valuable, he found them superfluous in the present era of managed care. He further opined that ordering every test available to rule out all possibilities besides the obvious diagnosis at so early a stage in patient assessment would be inappropriate and would constitute detrimental over-utilization of resources which exploit the patient. Moreover, Petitioner testified that he used P-5, a text on oncology, to rule out a lung abscess, but Dr. Drizin testified credibly that the patient history of no elevated temperature provided on the examination should have ruled, out a lung abcess without the need for the further tests specified in P-5 and in Petitioner's examination answers. Petitioner presented no evidence to support a human or mechanical error in creating or scoring Tasks 6 and 7 of his examination. The Departments past testing experience does not reveal anything "tricky" about Tasks 6 and 7, provided they were approached sequentially from Tasks 1 through 6 (and 7). Several previous chiropractic licensure examinations have used these questions without a high number of failures on those particular questions. Nothing in past testing history has pointed out that these questions are misleading or confusing to a high number of candidates, because a high number of candidates do not miss these questions. Two examiners independently grade each candidate's performance during the Physical Diagnosis portion of the chiropractic licensure examination. Two examiners are used to ensure fairness to the candidate and reliability of the scores. They are selected on the basis of the requirements of Rule 64B2-11.007, Florida Administrative Code. Each examiner must attend a training session for standardization purposes and to reduce subjectivity and/or discrepancies among the examiners approaches. The examiners who graded Petitioner's performance, Examiners 15 and 59, met all qualification anal training prerequisites established by statute and rule. The two examiners agreed 100 percent in scoring Petitioner's responses to Tasks 6 and 7. Both examiners gave Petitioner an °A" score, representing zero points for each task. Upon review, other fully-qualified examiners reached the same conclusion that Petitioner's answers to Tasks 6 and 7 had been correctly scored as earning zero points. These scoring methods were correct.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Health enter a final order denying and dismissing Petitioner's challenge of the score he received on the November 2000 chiropractic licensure examination. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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.
