The Issue The issue for consideration in this case is whether Petitioner should be awarded a passing grade on the clinical portion of the dental licensing examination given on December 12 through 14, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is a graduate of the University of Florida School of Dentistry and was eligible to sit for the examination for licensure as a dentist in Florida. Petitioner previously has taken and passed the written portion of the dental examination. He has taken the clinical portion of the examination twice and has received a failing grade each time. He is eligible to take the clinical portion alone for a third time, but must do so within a period of 13 months of taking it the second time or must take both the written and oral portions again. Dr. Scheutz first took the examination in June 1996. He received a passing grade in each of those examination portions which dealt with Florida laws and rules and with oral diagnosis. However, he received a grade of 2.31 on the clinical examination portion of the examination, and a passing grade was 3.0. Thereafter, in December 1996 he again took the clinical portion and this time received a grade of 2.71, still below the 3.0 passing grade. Dr. Theodor Simkin is a licensed dentist and consultant to the Board of Dentistry, who has been in the private practice of dentistry since 1950 and in Florida since 1975. He has been involved in the development, administration, and grading of the dental examination in Florida since 1979 and was a supervisor for the December 1996 examination. He is familiar with the standards applied in the clinical portion of the examination and how the examination is given and graded. Petitioner has challenged the grade he received on five separate procedures he performed during the December 1996 examination. The procedures chosen for accomplishment during the examination are not unusual procedures, but are common problems seen on a routine basis by a practicing dentist. Dr. Simkin reviewed the mannequin on which Petitioner did his work and which he presented to the examiners for grading. One of the grades challenged related to a "composite restoration" (Clinical D) for which Petitioner received a grade of 0. In this procedure the candidate is presented with a tooth on a mannequin. The candidate is instructed to cut off a corner of the tooth and then restore that corner with an amalgam restoration. The examiners are not present when the procedure is accomplished, but grade the procedure after completion. Instruction on the procedure is given to the candidate by a monitor who is present in the room but who does not grade the work done. The examination process is accomplished using the candidate number, not the candidate name, so that examiners do not know whose work at which they are looking. Once the procedure is done by the candidate, the mold is packed in the candidate's presence and is then held in the custody of the Board of Dentistry until examined independently by each of three examiners. Once graded, it is then shipped to Tallahassee and kept in a vault until needed, as here, for review by Dr. Simkin and others. Ordinarily, even if dropped, a model will not break. In the instant case, Petitioner performed the procedure on an upper right central incisor. The right corner of the tooth, approximately one-third of the tooth, was cut off and the candidate was instructed to rebuild it with a composite material. When the examiners evaluated Petitioner's work, they found that the filling was not bonded to the tooth and was loose. The loose restoration would be useless to the patient, whereas a properly done restoration should last for at least several years. On a human, the stresses applied to a tooth repair are significant, and the repair must be sufficient to withstand them. Notwithstanding Petitioner's claim that the tooth used was an artificial tooth to which the filling material does not easily bond, Dr. Simkin asserts that the bonding which occurs with a plastic tooth is different from that which occurs in a real tooth but the material can bond to the plastic tooth. He knows of no other complaints by other candidates at this examination of not being able to complete the restoration because the materials would not bond. Petitioner admits that when he did the procedure during the June 1996 examination, the tooth bonded correctly. In light of all the evidence regarding this point, it is found that Petitioner's claim is without merit. Petitioner also challenges his score of 2.0 received for his work on an "amalgam cavity preparation" (Clinical B). This composite score was based on a 2.0 awarded by each of the three examiners. An amalgam preparation is what is done to the tooth to get it ready for filling. In this case, an actual patient, supplied by the examines, had a cavity which was reviewed by the examiners. Once the patient was accepted by the examiners, the candidate then cleaned out the cavity and got it ready for filling. Dr. Simkin's review of the documentation prepared in regard to this candidate's performance of this procedure, in his opinion, supports the grades given by the examiners. Here, Petitioner sent the examiners a note as to what he proposed to do with his patient. Petitioner sought to deviate from a normal preparation due to the location of the caries, and the monitor agreed, as did the examiners. Thereafter, the candidate did the procedure. All three examiners graded his work against his proposal and gave him a failing grade. The examiners determined that his work on this patient merited only a grade of 2.0 because, according to two examiners, the margin of the filling was not separated from the next tooth as required. As to the "posterior endodonture procedure" (Clinical M), Petitioner received an overall score of 1.3. In this procedure, the candidate is required to bring in an extracted tooth which is mounted in an acrylic block. The candidate is to remove the nerve and diseased tissue, clean the cavity, file it, fill the canals, and seal the tooth. This is known as a root canal. In grading a candidate's work, the examiners look to see that the canal is properly cleaned out, is filled properly and sealed with a surface that is slightly shorter than the apex (highest point) of the tooth. On the x-ray taken of Petitioner's sample, it is obvious, according to Dr. Simkin, that one canal is at or short of the apex, but the other is long, and this is considered unacceptable treatment. Even Petitioner agrees. Petitioner received grades of 3.0, 2.0 and 1.0 for an overall failing grade of 2.0 on the "prep. cast restoration" (Clinical F). In this instance, the procedure called for the candidate to install a gold onlay. Normally the surface to which the onlay is to be placed is reduced slightly below the abutting face. Here, though one side was acceptable, Petitioner reduced too much on the other side without reason. Petitioner claims, however, that only one of the three examiners indicated excessive reduction. That determination calls for a very subjective opinion. He cannot understand how the propriety of reduction can be determined without looking into the mouth of a patient. However, Petitioner has presented no evidence in support of his opinion. The fifth challenge relates to the grade Petitioner received in the "pin amalgam pre. procedure" (Clinical G). This involves a situation where one cusp has been removed, and in order to hold a restoration, Repin must be placed in the solid portion of the tooth. The examiners determined that Petitioner's occlusal was too shallow at 1 mm, when it should have gone down 1~ to 2 mm. This, the examiners considered, would not give enough strength to hold the amalgam properly without risk of fracture. Dr. Simkins is of the opinion that Petitioner was subjected to a standardized test which was graded fairly. It would so appear and Petitioner introduced no evidence to the contrary. Ms. Carnes, a psychometrician and an expert in testing and test development who trains examiners to ensure they are consistent in their evaluations, agrees with Dr. Simkins' appraisal. The Department of Business and Professional Regulation tries to insure through its standardization efforts that the approach to grading of each examiner is consistent and that all examiners are grading with the same set of criteria. This was done in preparation for the December 1996 dental examination and a check done after the examination showed it was graded this way. Petitioner cites by way of explanation, if not excuse, that during his senior year in dental school, he was badly injured in an automobile accident and required stitches and several weeks of physical therapy for, among other injuries, a herniated disc. When he recovered sufficiently, he finished his course work and sat for the dental examination in June 1996, passing two of three sections, but not the clinical portion. Dr. Scheutz took the clinical portion of the examination again in December 1996 and again failed to earn a passing score. In his opinion, his knowledge has improved over time, but his procedural skills have diminished over the months due to his injuries. He contends he has work in dentistry he can do which will make accommodations for his physical condition, but does not believe he should have to wait another six months to take the examination again, especially since he would have to again take the entire examination, including those portions he has already passed since at that time more than 13 months from his last examination would have passed. Petitioner contends the clinical testing portion of the examination is too subjective to be valid. He wants to close this chapter in his life, but does not want to deal any more with the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a Final Order denying Petitioner's challenge and sustaining the award of a failing grade on the clinical portion of the dental examination taken by the Petitioner on December 12 through 14, 1996. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Dr. Eric J. Scheutz, pro se 332 Whispering Oaks Court Sarasota, Florida 34232 Karel Baarelag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906-0127 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 23rd day of April, 1993.
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry in the State of Florida, having been issued license number DN 0006941. In May, 1987, Respondent's son Cesar L. Palomeque was neither licensed as a dentist in the State of Florida nor as a dental hygienist. He became a licensed dentist in the State of Florida in August, 1987. Cesar L. Palomeque was employed by Respondent and worked in her office during May of 1987. At that time Respondent knew that Cesar Palomeque was not a licensed dentist or a licensed dental hygienist. In early May of 1987, J.L.'s mother and grandmother were in a cafeteria/bakery located downstairs from Respondent's dental office in Hialeah. J.L.'s grandmother struck up a conversation with a gentleman who was there. He introduced himself to the women as Cesar Palomeque, told them that he was a dentist who practiced upstairs, and encouraged them to visit him professionally since he charged quite reasonable prices. Pursuant to an appointment made by his mother, on May 13, 1987, J.L. went to Respondent's Hialeah office. On that date, patient J.L. had x-rays taken, received a prophylaxis and scheduled further treatment. He returned for that subsequent treatment on May 20, 1987. During May of 1987, Respondent's dental office consisted of a waiting area and a large operatory. The operatory consisted of three treatment bays. The treatment bays were separated from each other only by partitions which extended a few feet up from the floor. Although patients seated in a chair in one of the treatment bays could not see a patient in one of the other treatment chairs due to the partition, everything occurring within one of the treatment bays could be heard throughout the room, and a person standing anywhere in the room could see what was taking place within any of the treatment bays. On May 20th, J.L. was escorted into the operatory and placed in one of the treatment bays by Cesar Palomeque. At the time that Cesar Palomeque escorted J.L. into the operatory and placed him in one of the treatment chairs, Respondent and her dental assistant were working on a patient in the first treatment bay. Cesar Palomeque placed J.L. in one of the chairs, placed a bib on him, laid out instruments and filled the water cup. During the time J.L. was in the chair on May 20th, he was very nervous and restless since he knew he was going to have a tooth drilled and filled. He would not open his mouth and was very uncooperative. Cesar Palomeque spoke with the boy and attempted to comfort him unsuccessfully. Cesar Palomeque summoned J.L.'s mother into the operatory because J.L. was so uncooperative. J.L.'s mother came into the operatory, stood a few feet away from the chair in which her son was seated, told him to be cooperative, and stayed there observing during the balance of the treatment her son received that day. On May 20, 1987, Cesar Palomeque drilled and filled one of J.L.'s teeth. While Cesar Palomeque was drilling and filling J.L.'s tooth, Respondent could hear the disturbance created by J.L. and could see the treatment being rendered to J.L. by Cesar Palomeque. She knew at the time that Cesar Palomeque was drilling and filling J.L.'s tooth. On May 13 or on May 20, 1987, when J.L. was leaving Respondent's office, he was given a tooth brush bearing the inscription "Dr. Cesar Palomegue." Drilling and filling a tooth is a non-reversible dental procedure. It constitutes the practice of dentistry. All monies paid to Respondent for services rendered to J.L. were refunded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her in this cause and suspending Respondent's license to practice dentistry for a period of six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October, 1989. LINDA M. RIGOT 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 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-1964 Petitioner's proposed Findings of Fact numbered 1, 3, 4, and 7-12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed Finding of Fact numbered 2 has been rejected as being unnecessary for determination of the issues in this cause. Petitioner's proposed Finding of Fact numbered 5 has been rejected as being subordinate to the issues under determination in this cause. Petitioner's proposed Finding of Fact numbered 6 has been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed Findings of Fact numbered 3-8, 10, 11, 14, and 19 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed Findings of Fact numbered 1, 2, 9, 12, 13, 16, and 18 have been rejected as being unnecessary for determination of the issues in this cause. Respondent's proposed Findings of Fact numbered 15 and 20-23 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's proposed Findings of Fact numbered 17 and 24 have been rejected as being irrelevant to the issues under consideration in this proceeding. COPIES FURNISHED: Jack L. McRay, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold M. Braxton, Esquire 9100 South Dadeland Boulevard Suite 406 Miami, Florida 33156 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issue in this case is whether Petitioner should have received a passing score on the June 2001 Florida Dental Licensure Examination, notwithstanding Respondent’s determination that he failed the test.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Siegel, who graduated from dental school in 1999, took the June 2001 Florida Dental Licensure Examination (the “Exam”), which was administered by the Department on June 2 through June 5, 2001. The Exam had two parts, a Clinical Part and a Laws and Rules Part. The Clinical Part was further divided into ten sections, each of which consisted of a separate clinical procedure. The minimum passing score on the Laws and Rules Part was 75.00; on the Clinical Part, a minimum score of 3.00 was required to pass. As calculated by The Department, Siegel scored 70.00 and 1.49, respectively, on the two parts. Thus, according to The Department, Siegel failed both parts of the Exam. Each candidate’s performance on the Clinical Part of the Exam was scored independently by three examiners chosen by the Department.1 These examiners were not informed of any candidate’s identity, nor were the candidates told the examiners’ names; they were not permitted to speak directly to one another while the Exam was being administered. The examiners who graded Siegel’s clinical performance had successfully completed standardization training.2 Additionally, the Department determined, as part of a routine post-Exam statistical review of examiner performance, that these particular examiners were reliable in terms of their consistency in applying the proper grading criteria.3 To determine a candidate’s overall score on the Clinical Part of the Exam, the Department first computed the average of the three examiners’ raw scores for each individual procedure. Each average score was then adjusted using the percentages prescribed in Rule 64B5-2.013, Florida Administrative Code, to arrive at a weighted mean score. A candidate’s overall score on the Clinical Part was equal to the sum of his or her weighted mean scores for each section. At hearing, Siegel challenged just one clinical procedure, the Patient Amalgam Restoration.4 An amalgam restoration is a dental procedure that involves filling a cavity so that the affected tooth is restored to proper form and function. After this procedure, the treated tooth should closely resemble its original size and shape. Siegel’s raw scores on this procedure were very low. One of the examiners who testified at the hearing, a dentist with some 40 years’ experience, had awarded Siegel no points for the Patient Amalgam Restoration procedure because, after completion of the work, the restoration was fractured and the patient’s gingival margin was open. Another examiner, a dentist with 35 years of experience, explained at hearing that Siegel's work on the amalgam restoration was a failure; in this examiner’s opinion, the patient's tooth was actually in worse condition after Siegel had finished the procedure. The testimony of these examiners was credible and is accepted as being truthful and accurate. Accordingly, it is found that Siegel failed to perform the amalgam restoration with the minimum degree of skill and competence required for licensure as a dentist in this state. For his part, Siegel contended that one of the examiners (presumably the one who did not testify at hearing) had caused the restoration to fracture. Siegel based this theory on the account of his patient, Scott Graham, who testified that one of the examiners had "picked" at his tooth with a sharp instrument.5 (Mr. Graham is not a dentist.) Mr. Graham, however, had not complained about any alleged examiner misconduct at the time of the examination. Likewise, no examiner ever reported any such irregularity. In the absence of contemporaneous corroborating evidence, created before it became known that Siegel had failed the Exam, Mr. Graham’s testimony is simply not persuasive evidence of examiner misconduct. To be sure, it is theoretically possible that an examiner might damage a candidate’s work and then attempt to cover up his error by blaming the candidate. The evidence in this case, however, is not nearly sufficient to support such a finding. To underscore the point: Siegel’s theory is speculative at best. As for the remaining clinical procedures, while Siegel complained that his scores were not a reliable or accurate measure of his performance, he failed to introduce any persuasive evidence in support of this allegation. At bottom, the trier is not persuaded that the scores Siegel received were arbitrary, capricious, unfair, inconsistent, or otherwise objectionable. To the contrary, the evidence in the record demonstrates convincingly that the scores Siegel received on this Exam were reliable, correct, impartially rendered, and consistent with the grading practices used in scoring other candidates’ work.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department advise the Board Of Dentistry to enter a Final Order (a) holding that Siegel's administrative challenge to the scores he received on the June 2001 Florida Dental Licensure Examination is without factual and legal merit and (b) declaring that Siegel failed said examination. DONE AND ENTERED this 19th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 February, 2002.
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 August, 2001.
Findings Of Fact Background Petitioner, Richard Alan Cohen, sat for the dental licensure examination in December 1992 and received an overall score of 2.98 for the clinical portion of that examination. The minimal passing score for the clinical portion of the examination was 3.0. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 01, 05 and 06. Respondent rejected petitioner's challenge, and petitioner filed a timely request for a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest respondent's grading of those procedures. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05. The examination procedure During the course of the examination at issue, the candidates were called upon to exhibit, with regard to procedure 06, certain manual skills relevant to an endodonic procedure. Specifically, the candidate was required to prepare a tooth, which had been extracted and mounted in a mold, for what is commonly called a "root canal." Preparing for the procedure included the cleaning and shaping of the interior of both root canals from each apex (the tip of the root) up to the access area near the crown (top) of the tooth. Thereafter, sealant was to be sprayed into the canal, and gutta percha condensed (compressed) in the canal until it was completely filled. The goal of the procedure was to get a seal within one half to one millimeter of the apex, and to fill the canal so there were no voids. The quality of a candidate's performance on the procedure was graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, a grade of "4" represented a better than minimally acceptable dental procedure, and a grade of "5" represented an outstanding dental procedure. See, Rule 61F5-2.013, Florida Administrative Code. Petitioner's examination results Petitioner received a grade of 3.66 for procedure 06, based on scores of 3, 3, and 5 from the individual examiners. Although a passing score on procedure 06, petitioner's overall score on the clinical part of the examination was 2.98; a score below the minimum 3.00 required to pass that portion of the examination. According to the grade sheets, the two examiners who assigned petitioner a grade of 3 observed that petitioner failed to properly fill the canal spaces with gutta percha. In the opinion of the one examiner who testified at the hearing, such observation was based on his examination of an x-ray (petitioner's exhibit 1D) which reflected that the canal was filled beyond the apex and there appeared to be some spacing between the wall of the canal and the filling material. A review of the examination results At hearing, the proof demonstrated that the quality of petitioner's performance on that portion of procedure 06 pertinent to this case is aptly reflected on the x-ray marked as petitioner's exhibit 1D. That x-ray reflects, with regard to one of the canals petitioner filled, what is either a void or filling material beyond the apex of the root. Either event evidences a failure to properly fill the canal space, and warrants a grade of less than 5. Here, petitioner contends he should be awarded a grade of 4 for the procedure. The proof fails, however, to support his contention. If the image reflected by the x-ray is gutta percha beyond the apex, petitioner's performance on the procedure would not meet minimally acceptable dental standards and would merit a failing grade. If on the other hand, the material extending beyond the apex is sealant or the image reflected by the x-ray is a void, the procedure was acceptable, but warranted a grade of less than 5. Under such circumstances, it is concluded that the proof fails to demonstrate that the grades of 3 accorded petitioner were baseless, lacking in reason or that in deriving such grades the examiners departed from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1994. Hearings 1550 Hearings 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 22nd day of February
The Issue The issue in this case is whether Petitioner should receive a passing score on the December 2001 dental license examination.
Findings Of Fact In December 2001, Petitioner took the dental licensure examination and failed to pass the clinical portion of the exam. The examination is a three-day process involving two days of clinical examination. Those two days of clinical examination consist of nine procedures. Four of the nine procedures were challenged by Petitioner. The clinical portion is where the candidate is required to perform certain patient procedures. The work product of the student, or candidate, is evaluated following the performance of those procedures by three examiners. Each examiner grades the candidate independently of whatever score the other examiners may award on a particular procedure. Then the average grade for each procedure is weighted in accordance with requirements of Rule 64B5-2.013, Florida Administrative Code. This produces the overall score for the entire clinical exam. The Department uses three examiners' scores because this provides a more reliable indication of the candidate's competency and true score. Further, each examiner must be a licensed dentist for a minimum of five years and have no complaints or disciplinary actions against their license. Examiners have no contact with the candidate taking the examination and, accordingly, have no idea of who they are grading. To further ensure fairness, each examiner must attend and successfully complete a standardization session. The purpose of these sessions is to ensure that each examiner is trained to use the same internal grading criteria. In standardization, each examiner is thoroughly taught specific grading criteria with the result that examiners are instructed on how to evaluate the work of the candidates. The examiners who graded Petitioner’s examination had successfully completed the foregoing standardization session. Also, the Department’s post-exam check found these examiners’ grading to be reliable. Petitioner contested the score he received on Procedure 4, the Endodontic procedure, a root canal. The Endodontic procedure required removal of infected nerve tissue and blood vessels pulp from the tooth. Petitioner was required to access the canal and pulp tissue from the outside. Then, Petitioner was required to remove the bad nerve and cleanse the canal. Finally, Petitioner was required to seal the canal to prevent recurring bacteria. Petitioner failed to observe a fracture in the tooth. He claimed that a fracture to the root of the tooth was caused by the Department after he reviewed his examination and that no one advised him the root was fractured. Petitioner requested a score of 3.00 for this procedure. However, the Department's witness, Dr. William F. Robinson, a licensed dentist for 32 years who examined the tooth and X-ray prepared by Petitioner, testified that the fracture to the root was noticed in both the X-ray and on the tooth when he examined the same. Additionally, two of the three re-graders also noted the fracture of the root. With regard to Petitioner's preparation of the X-ray at the conclusion of the examination, Dr. Robinson opined that Petitioner caused the fracture to the root during the examination and not the Department, as alleged by Petitioner. Dr. Robinson further opined that even without a fracture to the root of the tooth, Petitioner failed the procedure and the failing grade he received was fair. Dr. Robinson would not recommend that Petitioner receive a passing score of 3.00 on the procedure. The examiners' comments and grades and the testimony of Dr. William F. Robinson establish that Petitioner failed to properly perform this procedure. The grade Petitioner received was fair. Petitioner challenged the grade he received on Procedure 5, the Class IV Composite Restoration of the front tooth, but did not offer any testimony at the hearing as to why the score was not correct for the procedure. Petitioner requested that the score of 1.00 given by one of the examiners be thrown out, thus giving him a passing grade on this procedure. Procedure 5 of the dental licensure examination is a procedure that involves the candidate’s ability to replace the edge of the front tooth with a composite resin material, which is a tooth-colored filling. As established by the examiners’ comments and grades and the testimony of Dr. William F. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Specifically, the examiners found that the tooth was abraded and the re-grader noted, as did the examiners, the excessive “flash” on the tooth. Dr. Robinson also noted both deficiencies in the procedure. Petitioner contested the score he received on Procedure 6, the Class II Composite Restoration procedure in his original petition, but offered no testimony at the hearing concerning this procedure. Dr. Robinson reviewed the examiners' grades and the tooth prepared by Petitioner and opined that Petitioner’s grade of 2.66 for this procedure is fair. Based on the examiners’ comments and grades and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Petitioner contested the score he received on Procedure 7, the preparation for a 3-unit Fixed Partial Denture, claiming that on the re-grade one of the examiners reviewed the wrong procedure. The Preparation for a 3-unit Fixed Partial Denture procedure of the dental licensure examination is a procedure that involves the candidate’s ability to provide preparations of two (2) teeth in order to replace a missing tooth with a fixed bridge. Dr. Robinson established that Petitioner’s work on this procedure resulted in one tooth, No. 29, being grossly over reduced and tooth No. 31 was insufficiently reduced. The result of such work is that it is impossible to place a bridge on such an improper preparation. As established by testimony of Dr. Robinson, Petitioner's problem with this procedure resulted from Petitioner’s undercut. This undercut indicated that Petitioner’s preparations were not properly aligned to accept a bridge. Based on the examiners’ comments and grades, and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. The Department's “re-grade” process was utilized in this case. Used to give all candidates who timely request a hearing another chance at passing, the re-grade process allows the Department to go back and determine whether any grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade process. The Department maintains post-standardization statistics of the examiners’ performance. In this case, those statistics indicated that Petitioner’s examiners graded reliably. In addition, the Department calculates post- examination statistics for the examiners, which are as follows for the examiners who graded Petitioner’s challenged procedures: Examiner Accuracy Index & Rating #206 95.8-Excellent #375 98.8-Excellent #380 92.1-Good #334 97.8-Excellent #298 95.9-Excellent #375 98.8-Excellent-was an original and a re-grader. All of Petitioner's examiners exhibited a reliability significantly above the minimum acceptable accuracy index of 85.0.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the December 2001 dental licensure examination. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. 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 9th day of October, 2002. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Jason S. Baker, D.M.D. Westchester Medical Center 95 Grasslands Road, Box 572 Valhalla, New York 10595 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner, Shaikh Enayetul Karim, sat for the dental licensure examination administered by the Department of Professional Regulation in December 1985. The Petitioner received a failing score of "2.85" for the clinical portion of the examination and a score of "78" on the written and oral diagnosis portion. A passing score on all portions is necessary for licensure. The Petitioner complained of contradictory grading or disparate grades between each of the three examiners for a given procedure. Accordingly, pursuant to Department rules, the Petitioner's objections were reviewed by the Respondent's dental examination consultant as to the following procedures: Procedure 2 - amalgam restoration Procedure 5 - endodontic evaluation (posterior) Procedure 6 - endodontic evaluation (anterior) Procedure 7 - cavity preparation Procedure 8 - onlay wax-up Procedure 9 - pin amalgam preparation Procedure 10 - pin amalgam restoration The Respondent's consultant, Dr. Sue Ellen Hamilton, testified as an expert witness and was one of the three graders on Petitioner's original examination. Upon reviewing the Petitioner's examination and his scores for each procedure, she ultimately agreed with the grade assigned by the three examiners for procedures numbered 2, 5, 7, 8 and 10 above. She questioned the grades for procedures 6 and 9, however, and recommended that those two procedures be regraded by three additional independent graders. Upon these procedures being regraded, the Petitioner's scores still were insufficient to merit a passing score on the clinical portion of the examination. Passing that portion is required to pass the entire examination and to become licensed. Lucinda Ann Richards was accepted as an expert witness in the areas of examination development, evaluation and the administration of examinations. She is an examination development specialist with the Department of Professional Regulation and is a PhD candidate in "testing and measurement," a discipline involving training in the development and implementation of fair examinations which accurately test competency in a field such as dentistry. She established that the examination at issue was developed and administered in accordance with the Department's rules. She particularly described the method of training of examiners to ensure that they grade each procedure tested independently of each other and accord a candidate a fair evaluation, giving a candidate the benefit of the doubt in the case of an answer or procedure in which they feel the scoring thereof is a "borderline" passing or failing situation. She established that the examination is based upon "holistic material," that is, the material for the dental examination is not drawn from one or two schools or methods of dentistry, but rather the material for the examination and the questions and procedures upon which candidates are tested is drawn from all generally accepted schools or methods of dentistry and is graded on the same holistic basis, that is, candidates' answers are accorded passing scores if they are correct under theories or practices of any of the generally accepted schools or methods of dentistry related to the procedure or question posed to the candidate. She established that this holistic grading system is more fair and reasonable for examination candidates who typically are educated at many dental schools in many different states. Fairness of the examination and its grading is additionally ensured by the use of three different independent examiners who each independently grade each question or procedure without consultation with each other. Their grades are then submitted for each procedure and averaged so that the score the candidate obtains is an average score so that the candidate will get the benefit of those examiners who graded a given guest ion or procedure with the maximum grade, a "5" to counter balance an examiner who might have graded the procedure with a "1" or "2." Thus, as established by witness Hamilton, the grades assigned by the three examiners for procedures 2, 5, 7, 8 and 10 were determined upon review to be correct but, as to those grades for procedures 6 and 9 which Ms. Hamilton determined required regrading, it developed that upon regrading of those procedures he was accorded the same grade on procedure 6, but indeed received a lower grade on procedure 9. Thus, ultimately, the Petitioner's grade on the clinical portion of the examination at issue, upon regrading, was still insufficient to accord him a passing score. Contrary to Petitioner's remonstrances before and at hearing, his score was not sufficient so that one additional point would have passed him, even upon regrading his examination. Witness Sue Ellen Hamilton was accepted as an expert witness in the field of practice of dentistry and the evaluation of dental examination candidates. She was examiner number "083" who helped grade the Petitioner's original examination and who participated in the review of that examination, when he protested his score to the Department. She found that all the procedures mentioned above put at issue by the Petitioner except procedures 6 and 9, were graded correctly. For instance, she did agree with the Petitioner in her testimony that he identified the "canals" correctly, but the other mistakes on that procedure amply justified the original grade she and the other examiners accorded him. Procedure 8 was not accorded a passing score upon original grading or upon review by Ms. Hamilton. That procedure involved a wax "onlay" which was "waxed up" higher or modeled with a higher dimension than surrounding teeth. Ms. Hamilton established that this was a serious defect which would result in that tooth being the only tooth touching the opposing teeth in both jaws. Witness Hamilton otherwise in her testimony, amply established that the grades on procedures 2, 5, 7, 8 and 10 were correct as originally scored and that, upon the regrading she felt required on procedures 6 and 9, that the scores upon regrading were correct. She established that as to procedure 2, there was a serious defect involving an "open contact," that is, too much space between the teeth of the model. The Petitioner had been dissatisfied with the variation of the three examiners' comments about this procedure. Two of the examiners had criticized the open contact, and the third examiner noted "proximal contour." Ms. Hamilton established that these examiners' comments do not actually oppose each other in their import. It would not be possible to verify the fact of contact or lack of it by an X-ray "because of variances due to angulation" (see Petitioner's Exhibit 1). Ms. Hamilton established, however, that given that there was an open contact situation in the Petitioner's performance of this procedure, the procedure should have a failing grade without having the candidate redo that restoration because of the fundamental and serious nature of this defect. Concerning procedure 5, the grades given were "3", "5" and "1". Ms. Hamilton agreed with the Petitioner that the canal identification was correct. Even so, the "messial" wall was overextended and slight "pulp horns" were found, on the "lingual" wall. She felt that the grade of "5" accorded by one examiner was overly generous but it should be allowed to balance the grade of "1" given by another examiner so that a fair, holistic evaluation of that procedure was that score originally given, that is, an average of the grades "3", "5" and "1". Accordingly, she recommended no regrading. As another example, upon her review of the Petitioner's response to procedure 6 (grades given were "2", "4" and "3") she found that indeed the preparation was overextended incicsally, as the examiners had found, but she could find no evidence of the under-extension concerning which the Petitioner had been criticized and concedes that maybe examiner number "10" had made an error in making the wrong comment about this procedure. Even so, examiner "10" had given the Petitioner a passing grade on it and in an abundance of caution, Ms. Hamilton recommended that it be regraded since she felt the preparation did not deserve a failing grade. The regrading of procedure 6, however, did not result in increasing the overall score on the clinical portion of the exam to a passing grade. As to procedures 7 and 8, she found the grades were fair for those procedures and should stand. For instance, as to procedure 7, she found that the "axial walls will not draw," which is a defect determined originally by the examiners. As to procedure 8, she found that the "margins were generously bulky and the over-waxed buccal cusp and distal marginal ridge would cause hyperocclusion." She felt the overly generous grades of "3" and "4" accorded by two of the examiners adequately compensated for the low grade of "1" accorded by the third examiner and felt that the grade was fair as to that procedure also. Procedure 9 has already been discussed and Ms. Hamilton recommended a regrade of that procedure, which was done. She felt the grade of "5" accorded by one examiner was overly lenient, did not sufficiently balance the lower grade of "2" given by another examiner, hence the recommended regrading for reasons more particularly described in Petitioner's Exhibit 1. Finally, as to procedure 10, the pin amalgam restoration, all three examiners accorded the Petitioner a grade of "3." Ms. Hamilton, upon a review of these grades and of the procedure performed by the Petitioner found that the margins were bulky on the "proximal and buccal surfaces." The distal buccal cusp was too narrow. In short, she felt that the grades accorded this procedure were justified to begin with. In summary, as established by Ms. Hamilton, although the Petitioner felt many of the grades were inconsistent and contradictory, it was established that the comments of the examiners were guidelines to show candidates where their procedures differed from the ideal situation. Comments are designed to overlap each other for each procedure so each situation is evaluated as completely as possible. It is difficult, given different aspects and interpretations possible for each procedure to have agreement of all three examiners as to scoring on the same procedure. This is why three examiners were used so as to aim for a holistic evaluation of each procedure and to average the number scores accorded by each examiner so as to accord maximum fairness to the candidate. She and witness Richards established that this was done as to each of the contested procedure grades for the Petitioner. With this type of grading in mind, it was shown that the object of the examination review accorded the Petitioner when he first objected to his grades, is to try to discern if a grade by one examiner is unjustifiably low and is not compensated for by a lenient grade from the other examiner, or examiners, for the same procedure. If one examiner, for instance, accords a grade of "1" for a procedure and other examiner on the same procedure accords a grade of "5", it may be that the grade of "1" is too low but that the grade of "5" is too beneficial to the candidate. Thus, the grades are averaged and the lenient grade is allowed to be averaged with the "too-low" grade, which results in a fair result for the candidate and helps to render the examination as a whole, and each procedure, a fair test of the candidate's overall competence in the field of dentistry. It has thus been established by Respondent's expert witnesses that the examination development and its administration and method of grading was professionally accurate, fairly took into account, and gave candidates the benefit of, their education in various schools or methods of dentistry, was statistically valid and was free of arbitrariness or caprice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Petitioner, Shaikh Enayetul Karim, be denied licensure as a dentist in the State of Florida. DONE and ORDERED this 24th day of June, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2635 The Petitioner Karim did not file Proposed Findings of Fact and Conclusions of Law in this case. The Respondent Department of Professional Regulation did file Proposed Findings of Fact and Conclusions of Law, all of which were accepted. COPIES FURNISHED: Shaikh Enayetul Karim Apartment 30 524 Morris Avenue Elizabeth, New Jersey 07208 Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner enrolled as a student in the College of Dentistry, University of Florida, in the fall quarter of 1974. Petitioner's entering class was denominated by Respondent as the "Gamma" class. The curriculum at the College of Dentistry is divided into four components: Phase A; modular curriculum; selective program; and clinical conference. Of these, Phase A and the modular curriculum comprise the major portion of a dental student's education. The modular curriculum, which is apparently unique to Respondent's institution, is designed with a great deal of flexibility and individualization. Little emphasis is placed upon formal lectures, and after completion of basic level courses, students are allowed to perform the requirements of the modular portion of the curriculum at their own pace. As a student completes the various course modules, members of the thirteen different departments in the College of Dentistry "sign off" on a student's performance, indicating satisfactory completion, and the student moves on to the next module, or course of study. Despite the fact that students are allowed to progress at their own rate, the program is designed essentially for completion in four years. The grading system utilized is "pass-fail", instead of the traditional "A-F" system. Petitioner completed his third year in the College of Dentistry in good standing, and began what should have been his final year in September, 1977. The Student Performance Evaluation Committee ("SPEC") is a standing committee within the College of Dentistry whose function is to monitor dental students' progress through the curriculum; to commend those students whose performance within the College is outstanding; to recommend students for promotion; and to identify those other students having difficulty in one or more parts of the curriculum in order to facilitate the taking of appropriate steps to assist those students. SPEC is composed of eight faculty members and four dental students. In January, 1978, several clinical incidents involving Petitioner were brought to the attention of SPEC by way of recommendations from several members of the faculty in the departments of Operative Dentistry and Community Dentistry that Petitioner be placed on probation for a period of one quarter "... during which time his judgment and integrity be watched very closely ..." (Petitioner's Exhibit #9). One of these incidents occurred on December 14, 1977, at which time Petitioner submitted an impression of an onlay preparation for evaluation to determine whether the impression was suitable to be poured up to make a restoration. Petitioner represented to a faculty member that the impression had previously been approved by another faculty member which, upon further investigation, proved to be untrue. In fact, the impression had been part of an earlier post-test and had been given a failing grade by two other faculty members. Other incidents involved substandard performance by Petitioner in the preparation and placement of tooth-colored restorative materials, two Class II amalgams and a large MOD preparation. Petitioner's performance with respect to the clinical incident involving tooth-colored restorative materials indicated that he did not seem to remember teaching material and that he bad difficulty evaluating his own work. The other clinical incident involving the two Class II amalgams and the MOD preparation indicated that Petitioner did not seem to ... have a grasp of operative dentistry, at times exercises poor clinical judgment, and probably most importantly his attitude is very poor with regard to his own performance ... (Petitioner's Exhibit #9) SPEC met on January 31 and February 1, 1978 to consider the incidents described above and, by memorandum dated February 1, 1978, recommended to the Dean of the College of Dentistry that petitioner be placed on probation through June 1, 1978, because his clinical skills in Operative Dentistry were inadequate. SPEC also recommended to the Dean that during the probationary period Petitioner's clinical judgment and management of patient records be closely monitored. By letter dated February 2, 1978, the Dean of the College of Dentistry advised Petitioner that he had been placed on probationary status until June 1, 1978, and further informed Petitioner that "[y]ou clearly must realize the seriousness of this situation, and that your demonstrated clinical judgment and management will determine whether or not you are taken off probation (Petitioner's Exhibit #12). During the 1978 spring quarter, while he was on probation, Petitioner submitted a patient to a part-time faculty member in the Department of Periodontics to be "checked off" as through phase one of periodontal therapy. Before this "checkoff", no restorative work utilizing gold material can be used on a patient, although amalgams and tooth-colored restorative materials are allowable. Petitioner advised the faculty member that he had performed some restorative work, but that he had done nothing that was not permissible prior to approval of completion of the first phase of periodontal therapy. Upon examination, however, it was discovered that Petitioner had, in fact, performed restorative work in the form of either onlays or inlays using gold. Upon being confronted with this fact, Petitioner advised the faculty member that some other unnamed faculty members in Operative Dentistry were "out to get him", and that he did not need any additional problems. The faculty member advised his department chairman of his observations, and the matter was referred to SPEC for consideration. On February 17, 1978, Petitioner had a clinical appointment with a patient, and indicated to a faculty member that he was ready to take a final impression of a tooth which had been prepared for impression at an earlier appointment. Upon examination by the faculty member, it was discovered that the tooth had been improperly prepared, and Petitioner, with the assistance of the faculty member, made a new impression for the crown. The faculty member advised Petitioner that the crown should be fabricated as soon as possible, but Petitioner made no attempt to seat the crown on this patient until five-and-one- half weeks later. At that time, Petitioner appeared at a clinic with a crown which had been fabricated on a single die, with no opposing model or adjacent tooth to wax against. When the faculty member covering the clinic inquired about the location of the models from which the crown had been fabricated, Petitioner advised him that he did not have them. Thereupon, the faculty member required Petitioner to make a new set of impressions. When questioned later by another faculty member concerning this incident, Petitioner represented that he in fact had the models, but could not locate them. Subsequently, on April 11, 1978, Petitioner reported to clinic with the crown referred to above, and was advised by the supervising faculty member that the crown had to be redone, but that it could be adjusted and worn as a "temporary". Later in that same clinic period, Petitioner approached another faculty member requesting authorization to cement the crown permanently, whereupon he was advised that the second faculty member was aware of earlier instructions given to Petitioner that the crown should be cemented only temporarily. The second faculty member was later advised that Petitioner had falsely represented to the first faculty member that Petitioner had indicated that the crown had been approved for permanent installation by the second faculty member. On April 18, 1978, one of the faculty members supervising Petitioner's work, noted extrusion of an upper tooth in one of Petitioner's patients, on whom petitioner had earlier placed a temporary. When the faculty member questioned Petitioner as to whether the temporary had been off for any length of time, Petitioner indicated that he could not remember. However, when the patient was questioned, the faculty member learned that the temporary had, in fact, come off, and that the patient bad advised Petitioner of that fact and been told that it did not matter. Upon further questioning, the patient also revealed that the temporary had been off for as long as one-and-one-half months, thereby apparently causing the extrusion which the faculty member had noted upon clinical examination. As a result of these incidents, SPEC held additional meetings on May 11, 1978 and May 16, 1978, at which time it was determined that SPEC would recommend to the Dean that Petitioner be expelled from the College of Dentistry. On May 31, 1978, Petitioner first took the Mock Board examination administered by Respondent. This examination simulates the state licensing examination which must be passed before a dentist is allowed to practice in Florida. The examination is usually administered near a student's anticipated graduation date, and serves the dual purpose of familiarizing the student with the requirements of the examination for licensure, while at the same time affording the faculty a final opportunity to evaluate a student's maintenance of competency in the various areas tested. Those areas tested on the Mock Board examination are cast gold, amalgams, periodontics, gold lab, denture lab and a final category denominated "professional evaluation". The examination is graded on a scale from zero to five, with five constituting a perfect score, and three a "passing grade". In order to pass the examination an average score of three is necessary. On the May 30, 1978 examination, Petitioner's scores in the aforementioned six categories were, in their respective order, 2.66, 1.22, 1.50, 1.50, 1.83 and 4.00 for an overall average of 2.38. The Dean did not accept SPEC's recommendation that Petitioner be expelled, but instead advised Petitioner, by letter dated May 26, 1978, that he would not be graduated with the rest of his class in June, 1975, and that his probationary status would be continued through the summer and fall quarters of 1978. In addition, by letter dated June 7, 1978, Petitioner was advised of the conditions of his probationary program during the summer and fall quarters. Essentially, these requirements were that Petitioner would be assigned five patients to provide comprehensive patient care, requiring at least periodontal, operative, and fixed prosthodontic needs. Petitioner was advised that any member of the faculty could supervise specific clinical procedures for the assigned patients, but that final examination for each patient in the respective disciplines would have to be performed by certain specified faculty members. In addition, in the June 7, 1978, letter, Petitioner was advised: ... all of the patients will be presented to a review panel consist- ing of Drs. Low, Vertucci, and Leo upon completion of their treatment. This review will consist of a written case presentation and a clinical examination of the patients and their records by the review team. [Emphasis added] At the conclusion of his treatment of the assigned family of patients, Petitioner met with the review panel. Before meeting with the panel, Petitioner advised Dr. Leo that he was unable to have the patients appear before the review team for clinical examination. When the panel met, Petitioner made no written presentation as required by the terms of his probation, and when questioned about the lack of a written presentation, did not respond. As a result of this meeting, the review team determined that, in their judgment, both Petitioner's formal presentation and his management of his family of patients during his probationary period were unsatisfactory. On November 30 and December 1, 1978, Petitioner again was administered the Mock Board examination which he bad earlier failed on May 30, 1978. On this second occasion, Petitioner scored 1.34 on the cast gold section; 2.50 in amalgams; 1.75 in periodontics; 2.50 in gold lab; 2.00 in removable prosthodontics; and 3.00 in professional evaluation, for an overall average of 2.01. Subsequently, SPEC again met and recommended to the Dean that Petitioner not be allowed to graduate in December, 1978. Petitioner was, subsequently, placed on probation by the Dean for the winter quarter of 1979. By letter dated January 5, 1979, the Dean informed Petitioner of the conditions of his probation for the winter quarter. In order to complete the dental curriculum Petitioner was given assignments in the areas of Periodontics, Periodontics, Oral Diagnosis Clinic, and Operative Dentistry, and was required to pass the January, 1979 Mock Board examination. Of these requirements, only those relating to Operative Dentistry and the January, 1979 Mock Board examinations are pertinent to this proceeding. With respect to Operative Dentistry, the Dean's letter of January 5, 1979, required Petitioner to ... spend two one-half day sessions per week exclusive of cancellations in this discipline and work under the supervision of Dr. Antonson or Dr. Clark. The primary emphasis must be on cast gold restorations, amalgams and composite restorations. You must perform these procedures at a clinically acceptable level, which is a score of "3" or above. The patients will be provided from the TEAM pool of patients. [Emphasis added]. The winter quarter of 1979 was comprised of a ten-week period. During this ten-week period, Petitioner spent twelve one-half day sessions in Operative Dentistry instead of the twenty required as a condition of his probation. On January 25 and 26, 1979, Petitioner took the Mock Board examination for the third time. His scores on the examination were 2.0 in cast gold inlays; 1.83 in amalgams; 3.5 in periodontics; 2.0 in cast inlay lab; 3.5 in denture lab; and 2.0 in professional evaluation, for an overall average of 2.41. Although petitioner's overall average was up from the 2.01 he had scored on the November 30-December 1, 1978 Mock Board examination, he was still below the 3.0 average required to pass the examination. In addition, Petitioner's clinical work in the area of Operative Dentistry performed during the winter quarter of 1979, especially that work involving more complex amalgam procedures, was not performed at a clinically acceptable level so as to demonstrate a maintenance of competency. As a result, Petitioner was informed that he would not be allowed to graduate at the end of the 1979 winter quarter due to his failure to perform the requirements of his probation contained in the Dean's earlier letter to him of January 5, 1979. Petitioner was, however, allowed to remain at the College of Dentistry on probationary status during the spring quarter of 1979. By letter dated March 14, 1979, petitioner was advised that he could satisfy the remaining requirements for graduation by successfully completing three cast inlays or onlays; successfully completing three Class II amalgam restorations; and successfully completing the Mock Board examination. In addition, in this same March 14, 1979 letter, Petitioner was advised that [i]n the event that you do not complete these requirements during the spring quarter of 1979, you will be expelled from the College of Dentistry." (Petitioner's Exhibit No. 36). Petitioner participated in the Mock Board examination administered on March 1, 1979. The results of this examination were that Petitioner scored 0.66 in cast gold; 1.83 in amalgams; 1.50 in periodontics; 3.00 in gold lab; 4.00 in denture lab, and 4.00 in professional evaluation, for an overall average of 2.03. Although this was the fourth occasion on which Petitioner had taken the Mock Board examination, his score was the lowest of the ten persons who took this particular examination, and, in fact, Petitioner was the only student who failed the March, 1979 Mock Board examination. Thereafter, Petitioner again took the Mock Board examinations on March 12, 1979. On this occasion, Petitioner scored 1.00 in cast gold; 2.33 in amalgams; 1.75 in periodontics; 2.5 in gold lab; 3.67 in denture lab, and 4.00 in professional evaluation, for an overall average of 2.20. Petitioner successfully performed that portion of his probationary requirements for the spring quarter of 1979 with respect to completion of three Class III amalgam restorations. Petitioner did not begin work on the gold restoration requirement of his probation until April 27, 1979. Additional appointments were scheduled for May 1, 4, and 8, 1979. Temporary restorations Performed by Petitioner on May 1 and May 8 received unsatisfactory clinical evaluations. Thereafter, Petitioner was unable to complete the gold restoration on the patient with whom he had been working because of the patient's inability to keep scheduled appointments. Although Petitioner maintains that he was unable to obtain other patients for completion of his probationary requirement dealing with cast gold inlays or onlays, the record in this proceeding clearly establishes that there was an ample number of patients with the appropriate types of lesions available through the TEAM clinic in the College of Dentistry. Accordingly, Petitioner could have, through the exercise of reasonable diligence, located these patients and performed the necessary restorative work had he chosen to do so. Petitioner was advised that he would be allowed to take the May, 1979 Mock Board examination only upon completion of his other probationary requirements dealing with cast gold restorations and amalgam restoration. Since he did not successfully complete the cast gold restoration requirement he was not allowed to sit for the May Mock Board examination. Petitioner was expelled from the College of Dentistry on June 8, 1979. Petitioner contends herein that Respondent treated him unfairly in failing to furnish monthly written progress reports to him during his various probationary periods. However, it appears clear from the record that Petitioner neither complained to any faculty member concerning not receiving such reports, nor did Respondent on any occasion fail to make abundantly clear to Petitioner its evaluation of his performance. Petitioner also complains that Respondent's decision to expel him from the College of Dentistry was improperly based upon disagreements between Petitioner and various faculty members concerning Petitioner's integrity and moral standards, rather than upon Petitioner's academic performance. In this regard, although it clearly appears that various faculty members in the College of Dentistry were justifiably concerned about Petitioner's personal and professional integrity, the decisions made to place Petitioner on probation on numerous occasions, and ultimately to expel him, had ample basis in his failure to demonstrate that degree of competence necessary to justify the award of a diploma from the College of Dentistry. Further, Respondent's refusal to allow Petitioner to take the May, 1979 Mock Board examination, or to remediate only portions of the various other Mock Board examinations which Petitioner had failed in no way prejudiced Petitioner in his attempts to procure a diploma. In the first instance, the record clearly establishes that no other student in the history of the College of Dentistry was afforded an opportunity to take the Mock Board examinations five times, as was done in Petitioner's case. Petitioner's failure to complete the other probationary requirements imposed upon him in the spring quarter of 1979, together with his failure to pass the Mock Board examinations on five previous occasions, amply justified Respondent's refusal to allow him to sit for the May, 1979 Mock Board examination. Finally, Petitioner's argument that he was treated differently than other members of his entering class who were either given an opportunity to remediate portions of the Mock Board examination, instead of the entire examination as was required of Petitioner, or were graduated without passing the examination is without merit. In the first instance, there is nothing in the record to indicate that other members of Petitioner's class had demonstrated the variety and severity of problems present in Petitioner's work-- a factor which would be necessary in order to validate any conclusions based on a comparison of their treatment by Respondent. Secondly, as indicated above, Petitioner was given more than ample opportunity to remedy any deficiencies in his academic performance by virtue of his being allowed to remain in what is basically a four-year program for approximately five academic years. Despite these opportunities, petitioner was either unable or unwilling to demonstrate competence sufficient to justify award of a diploma. Both Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
