The Issue Whether Respondent violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (1998); Subsections 466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and Subsections 456.072(1)(bb), 466.028(1)(i), 466.028(1)(l), 466.028(1)(m), 466.028(1)(t), and 466.028(1)(x), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact At all material times to this proceeding, Dr. D'Amico was a licensed dentist within the State of Florida, having been issued license number DN 7121. From 1999 to 2000, Dr. D'Amico was practicing dentistry at Florida Dental, located at 1535 Prosperity Farms Road, Lake Park, Florida. Florida Dental was a clinical-type practice, with several general dentists and Dr. D'Amico, who was the oral surgeon. In January 2001, Dr. D'Amico and Dr. Charles McNamara entered into an agreement by which Dr. D'Amico agreed to purchase Dr. McNamara's office equipment and supplies and to sublet Dr. McNamara's office space located on Lakemont Avenue in Winter Park, Florida. Because of an extended illness, Dr. McNamara was no longer going to practice at the Lakemont Avenue office, but was going to work for another dentist. When Dr. McNamara vacated his office space, he took his patient records with him. Dr. D'Amico was not an independent contractor of Dr. McNamara's, and they did not share a practice. Dr. D'Amico did not leave any of his patients' records with Dr. McNamara. There was not an agreement between Dr. D'Amico and Dr. McNamara that Dr. McNamara would cover for any of Dr. D'Amico's patients. Dr. McNamara had difficulty with Dr. D'Amico paying the rent for the office space and with payments received by Dr. D'Amico from patients of Dr. McNamara. By September 2001, Dr. McNamara was ready to evict Dr. D'Amico from the premises. Dr. McNamara went to the Lakemont Avenue office to give Dr. D'Amico eviction papers, and Dr. D'Amico was not there. A woman was sitting at the reception desk, and it appeared that the practice was being moved. Dr. McNamara later returned to the office, and it was obvious that Dr. D'Amico was no longer practicing at the Lakemont Avenue address. In the fall of 2001, Dr. John M. Altomare was in the process of leaving his office located at 7145 East Colonial Drive, Orlando, Florida, and moving into a new office which was under construction. During the days and hours that Dr. Altomare was not in his East Colonial Drive office, he agreed to let Dr. D'Amico use the office space. Dr. D'Amico had a separate telephone line at the East Colonial Drive office. Dr. D'Amico did not see any of Dr. Altomare's patients at the East Colonial Drive office. Dr. Altomare did not agree to cover for Dr. D'Amico. The relationship between Dr. D'Amico and Dr. Altomare lasted approximately two to three months during the fall of 2001. In the early part of 2002, Dr. D'Amico associated himself with a dental group in Tampa, Florida. Dr. D'Amico failed to publish a notice in the newspaper of greatest circulation in the county where he practiced, advising his patients of the relocation of his practice, when he left Florida Dental and the East Colonial Drive office. The evidence did not establish that the East Colonial Drive office was outside the local telephone directory service of the Lakemont Avenue office. Vicki Bruno was Dr. D'Amico's office manager beginning on August 1, 2001. She filed the patient records and other information in the patients' files. The files were kept in a filing cabinet at the Lakemont Avenue office. When Dr. D'Amico left the Lakemont Avenue office, the files were removed from the office. When Dr. D'Amico starting working out of Dr. Altomare's office, Ms. Bruno was assigned a closet in which to store the files. The closet space was not adequate to store the files, and, at one time, Ms. Bruno placed the patient files in the trunk of her car. Dr. Edward Allen Rumberger testified as an expert witness for the Department. Dr. Rumberger has been licensed to practice dentistry in Florida since 1975 and is board-certified in oral surgery. He reviewed materials related to the four cases at issue, consisting of patient statements, interviews with other individuals, including a former employee, some of the medical records of the patients, and some of the x-rays related to the cases. Patient C.O. On June 20, 1999, C.O. needed to have some repair work done on his Hader bar and went to Florida Dental, where he had been treated in the past. C.O. normally dealt with another dentist, but on this particular visit, he was seen by Dr. D'Amico. C.O. had four implants in his upper mouth. Dr. D'Amico advised C.O. that he did not have enough support for the implants and that he needed to have two pins inserted, at a cost of $1,000 per pin. As Dr. D'Amico began working on C.O., he advised C.O. that the other implants were infected. C.O. was the last patient to leave Florida Dental on June 20, 1999. After Dr. D'Amico finished his work on C.O., he asked C.O. for a check for $5,300 for the work he had done. C.O., groggy from the anesthesia, wrote a check to Florida Dental and gave it to Dr. D'Amico. C.O. returned to Florida Dental for several more visits after his initial treatment by Dr. D'Amico. Dr. D'Amico removed all of C.O.'s original implants and put in new implants. The new implants became infected and had to be removed. The site of the implants had to be débrided. Several weeks after the débridment procedure, Dr. D'Amico did a tibial harvest and grafting to the maxilla in an attempt to provide bone which would support an implant. After C.O.'s last visit with Dr. D'Amico, C.O. experienced pain, infection, and swelling. Dr. D'Amico had given C.O. several telephone numbers at which C.O. could reach him. C.O. called the telephone numbers that Dr. D'Amico had given him, but he could not reach Dr. D'Amico at any of the numbers called. Dr. D'Amico did not give C.O. the name of another dentist to call in case of an emergency. C.O. returned to Florida Dental and advised the person in charge that he needed to have something done for him. Another dentist, Dr. Castillo, was called in to attend C.O. C.O. continued to see Dr. Castillo, who was eventually able to insert three implants in C.O.'s mouth. After C.O. began treatment with Dr. Castillo, Dr. D'Amico contacted C.O. in an attempt to get C.O. to return to him for treatment. C.O. declined further treatment by Dr. D'Amico. Dr. Rumberger reviewed the medical records relating to C.O.'s treatment by Dr. D'Amico. The medical notes consisted of a brief note that five implants were placed and another note stating "Left Tibial Harvest Global Maxillary Cellular Graft." There was no mention of the type of anesthesia that was used. The records did not contain a treatment plan, which should have been done for both the implants and the tibial harvest. There is no documentation that the procedures were thoroughly discussed with C.O. or that C.O. gave informed consent for the procedures. The records do not contain a diagnosis. The x-rays in C.O.'s file were of poor quality and were unsuitable for use in forming an opinion. The records do not justify the course of treatment used by Dr. D'Amico based on the clinical examinations and x-rays of C.O. Patient J.H. On June 12, 2001, J.H. visited Dr. D'Amico at the Winter Park office, to have four lower teeth extracted. Some of the four teeth were broken and infected, causing J.H. pain. J.H. wanted to be fitted with a partial denture after the lower teeth were extracted. Dr. D'Amico extracted the four teeth on June 12, 2001, while J.H. was under sedation. An assistant was present during at least part of the procedure. On July 11, 2001, J.H. returned to see Dr. D'Amico for examination of the extraction sites and to have an impression made for a partial denture. Dr. D'Amico asked J.H. to remove his upper denture plate. Upon examination, Dr. D'Amico found some redundant soft tissue in the posterior of J.H.'s mouth. Dr. D'Amico told J.H. that the lesions may be precancerous. Dr. D'Amico excised some tissue from both sides of D.H.'s mouth. One sample was sent to a laboratory for testing, and the laboratory results indicated that the lesion was benign. Although Ms. Bruno testified that laboratory work was not being done because Dr. D'Amico was delinquent in paying for laboratory work, the tissue sample that was sent to the laboratory in July was prior to Ms. Bruno's employment with Dr. D'Amico. On July 31, 2001, J.H. returned to Dr. D'Amico's office, where Dr. D'Amico removed tissue from the anterior maxillar vestibule. The lesion in the upper area was probably an epulis fissura, which would not require a biopsy, but would require justification for removal. The tissue was removed to make the area more structurally amenable to wearing a new denture. A sample was not sent to a laboratory for testing. Ten days later, J.H. returned for a post-operative visit, complaining of pain in an area where Dr. D'Amico had excised tissue. J.H. was placed under sedation, and Dr. D'Amico reopened the incision. Dr. D'Amico removed a suture needle from the site. Tiffany Callicott, who was Dr. D'Amico's assistant, was present during the procedure and witnessed the removal of the suture needle. Dr. D'Amico did not tell J.H. that a suture needle had been left in his gum. When J.H. awoke from the anesthesia, Dr. D'Amico told J.H. that he had removed a stone. Later Ms. Callicott told J.H. that Dr. D'Amico had removed a suture needle and not a stone. J.H. had difficulty in getting Dr. D'Amico to fill out and submit insurance claims for J.H.'s dental work. He went to Dr. D'Amico's office to see about the insurance. One of Dr. D'Amico's staff gave J.H. three vials containing tissue samples which Dr. D'Amico had removed from J.H.'s mouth. J.H. took the vials to his family physician so that the samples could be sent to a laboratory. J.H. was billed for laboratory analyses for the two tissue samples that Dr. D'Amico did not send to the laboratory. He was also billed for the work that Dr. D'Amico did in removing the suture needle. Lija Scherer is a medical malpractice investigator with the Department. Part of her responsibilities, include obtaining medical records for cases which are being investigated. Ms. Scherer obtained an authorization for release of patient information from J.H. and served Dr. D'Amico with a subpoena to produce the medical records for J.H. Dr. D'Amico failed to produce the medical records. The evidence is not clear how the Department obtained the dental records for J.H., but some records were furnished by the Department to Dr. Rumberger. The medical records furnished to Dr. Rumberger consisted of two anesthesia records and a few progress notes, which were in different handwritings and were not signed or identified. Patient A.P. Dr. D'Amico provided dental treatment to A.P. in September 2001. A.P. had been advised by his regular dentist that his wisdom teeth were impacted and needed to be removed. A.P. went to the office of Dr. McNamara in Winter Park, Florida, to arrange to have the teeth extracted. When A.P. arrived at the office, he was met by Dr. D'Amico, who advised A.P. that Dr. McNamara had retired and that he was taking over the practice. A.P. agreed to allow Dr. D'Amico to treat him. On the first visit, A.P. brought a panoramic x-ray which had been taken by his general dentist. Dr. D'Amico went over the x-ray with A.P., told A.P. the procedure that he would use to extract the teeth, advised A.P. that he would have anesthesia for the procedure, and advised A.P. of the number of days needed for recovery. A.P. made an appointment with Dr. D'Amico to have his wisdom teeth removed on the Friday of the following week, September 13, 1991. S.P., A.P.'s mother, accompanied A.P. to Dr. D'Amico's office for the surgical procedure. A.P. filled out a medical history form and indicated that he was allergic to codeine. A.P. was taken to a room, which contained only a chair in which A.P. sat, a stool on which Dr. D'Amico sat, and a device by which the anesthesia was to be administered. Dr. D'Amico was accompanied by an assistant. A.P. was given anesthesia through an I.V. and went completely to sleep. Dr. D'Amico extracted the four wisdom teeth. After the surgical procedure, Dr. D'Amico's assistant gave S.P. three prescriptions for A.P. and no oral post- operative instructions.1 One of the prescriptions was a pain reliever, one was an antibiotic, and one was for inflammation. Neither A.P. nor his mother was advised that the anti-inflammation medication should be started immediately following surgery. A.P. did not have the prescriptions filled until the day after the surgery. A.P. felt that one of the medications contained codeine, and he did not take that medication. The evidence does not establish that codeine or a medication containing codeine was actually prescribed. After the surgery, A.P. experienced discoloration on the arm in which the I.V. had been given. The arm turned a dark purple from his elbow to his wrist. A.P. was also experiencing pain in his jaw. On the Monday following the procedure, A.P. attempted to contact Dr. D'Amico by telephone. A.P.'s telephone calls were put through to an answering service. A.P. received no answer from Dr. D'Amico on Monday. The next day A.P. again called Dr. D'Amico and spoke with a woman with the answering service. He told the lady that it was an emergency and that he needed to speak to Dr. D'Amico. About ten minutes later, Dr. D'Amico returned A.P.'s telephone call. Dr. D'Amico advised A.P. to apply warm compresses to his arm and that it was normal to have pain after impacted wisdom teeth were removed. A.P. was told to call Dr. D'Amico's office and set up an appointment to see Dr. D'Amico in a week. A.P. was still in a lot of pain and tried to telephone Dr. D'Amico again on Wednesday and Thursday. He was unsuccessful in reaching the doctor. A.P. left messages with the answering service, but Dr. D'Amico did not respond. On Friday, September 20, 2001, A.P. again tried to telephone Dr. D'Amico. This time he was unable to reach either Dr. D'Amico or the answering service. By September 20, 2001, S.P. became frustrated with the lack of response from Dr. D'Amico to A.P.'s attempts to contact him. S.P. went back to the office where the surgery had been performed, and the office was closed. Dr. D'Amico had advised her that he would be moving his office, so she also went to the location where the office was to be moved, but that office was also closed. She left a letter marked "urgent" at both offices. The letter stated that she and her son had been unable to contact Dr. D'Amico and that her son needed to be checked because he was still in pain and his arm was swollen at the site of the I.V. injection. In the letter, S.P. listed four telephone numbers by which either she or her son could be reached. Neither A.P. nor S.P. received any response from Dr. D'Amico. S.P. called another dentist, Dr. Andre Buchs, and requested that he see A.P. Dr. Buchs, who is board-certified in oral and maxillofacial surgery, saw A.P. on September 21, 2001. Dr. Buchs diagnosed possible phlebitis of the right arm secondary to the intravenous sedation that A.P. had been given by Dr. D'Amico. Phlebitis is an inflammation of the inside of the vein. Dr. Buchs also examined A.P. for the severe pain that A.P. was having in his upper right jaw. He found that there was a hole or perforation in the sinus membrane so that there was a communication between the mouth and the maxillary sinus. About 85 percent of such openings will spontaneously close over a period of time. The treatment was to prevent the area from getting infected with antibiotic therapy and to observe the opening for two to three months. Dr. Buchs prescribed amoxicillin and told A.P. to apply warm compresses to his arm and to avoid anything that would aggravate the perforation. He also advised A.P. that if he was unsuccessful in locating Dr. D'Amico to come by for a follow-up visit. Dr. Buchs saw A.P. again on September 26, 2001. A.P. was doing better by the time of the follow-up visit. On October 17, 2001, A.P. again saw Dr. Buchs. At this time, the opening in the sinus cavity appeared to be closing. Dr. Buchs did see a raised firm lump on A.P.'s inner right arm, which meant that A.P. had a true phlebitis. Ms. Scherer obtained an authorization for release of patient information from A.P. and served Dr. D'Amico with a subpoena for the medical records of A.P. Dr. D'Amico failed to produce the medical records. Thus, there are no medical records available to document the course of treatment for A.P. Patient M.F. M.F. saw an advertisement in her local newspaper that Dr. D'Amico, a maxillofacial surgeon, was associated with Florida Dental. M.F. had been experiencing discomfort with her set of dentures that was not functioning properly. She felt that implants might be a better solution to her problems and that a maxillofacial surgeon could perform the procedure. In October 1999, she went to see Dr. D'Amico for a consultation. Dr. D'Amico explained that he would place six implants into her upper gum ridge and that it would take approximately four months to complete the process. Dr. D'Amico described the steps in the procedure. A week later M.F. returned to Dr. D'Amico to begin the procedure. After the implants were inserted, M.F. began a waiting period to see if the implants would be rejected. She did have pain with two of the implants, and Dr. D'Amico did further work on those implants, which resolved the pain. During the implant process, M.F. would wait until Dr. D'Amico called her to come in for further work. Frequently he would make an appointment with M.F. and not appear for the appointment. M.F. would go to different locations for her appointments with Dr. D'Amico. Some of the locations appeared to her to be dental offices and some did not. During the healing process, Dr. D'Amico placed healing columns in the implants. Impressions were made for temporary teeth. M.F. wore the temporary teeth until permanent teeth could be made. During one session in which Dr. D'Amico was making an impression for her permanent teeth, he broke one of the front teeth on the temporary set. Dr. D'Amico told M.F. that she could get some Crazy Glue and repair the tooth. M.F. tried to repair the tooth with Crazy Glue, but it would not hold. Thus, M.F. had a missing front tooth for three or four months. After Dr. D'Amico had fitted M.F. with temporary teeth, he told her that he was going to move his dental practice to Boynton Beach. She did not hear from Dr. D'Amico for approximately three or four months. M.F. went to Boynton Beach to look for him, but was unsuccessful in locating him. Dr. D'Amico finally called M.F. and set up an appointment in Winter Park to finish placing the permanent teeth. She went to the appointment. According to M.F., when Dr. D'Amico placed the permanent teeth in her mouth, the teeth did not fit. There was one central incisor in front, and the second incisor was placed to the side. M.F. complained that the upper and lower teeth on both sides did not touch, resulting in difficulty in chewing. The permanent teeth were a different color from her natural lower teeth. Dr. Rumberger opined that the provision of permanent teeth was beyond Dr. D'Amico's expertise and that Dr. D'Amico should have referred M.F. to another dentist for that procedure. In an attempt to get better articulation between the upper and lower teeth, Dr. D'Amico filed a cap on her lower teeth. The cap had been placed by another dentist. In filing the cap, Dr. D'Amico exposed the metal. He did not offer to repair the cap. Dr. Rumberger did not give an opinion on whether the filing of the cap was below the standard of care. His comment was, "That can happen." Dr. D'Amico told M.F. to try wearing the permanent teeth for two weeks. After the two weeks had passed, M.F. called Dr. D'Amico's office. She was told by the person answering the telephone that Dr. D'Amico would return her call, but he did not. Several months passed before Dr. D'Amico contacted M.F. to come in so that the permanent teeth could be cemented in place. At this time, five of the implants had permanent abutments, but one implant still had a temporary abutment. Dr. D'Amico was going to cement the teeth without replacing the temporary abutment with a permanent abutment. M.F. would not allow him to cement the teeth in place without all the permanent abutments inserted. Dr. D'Amico moved his practice again. M.F. could not locate him and wanted to have the work finished. M.F. had paid Dr. D'Amico in full, approximately $20,000, for the work prior to the work being finished. She had the implant work finished by another dentist at a cost of $9,000. M.F. brought a legal action against Dr. D'Amico to recover her money. The medical records of M.F., which were provided to Dr. Rumberger for his review, were minimal and illegible. There was no mention of a study model being used or that there was a pre-op consultation with a dentist who would construct the permanent teeth. The medical records for M.F. were inadequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. D'Amico violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (1998); Subsections 466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and Subsections 466.028(1)(i), 466.028(1)(l), 466.028(1)(m), 466.028(1)(t), 466.028(1)(x), and 456.072(1)(bb), Florida Statutes (2001). It is further recommended that Dr. D'Amico's license be revoked. DONE AND ENTERED this 23rd day of July, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 23rd day of July, 2004.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978. In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam. A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following: Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression Pin amalgam preparation Pin amalgam final restoration Endodontic anterior Endodontic posterior Cast gold preparation Cast gold restoration Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered. Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following: 0 = complete failure 1 = unacceptable dental procedure 2 = below minimal acceptable dental procedure 3 = minimal acceptable dental procedure 4 = better than minimally acceptable dental procedure 5 = outstanding dental procedure Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure. Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets. Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services. PROCEDURE NUMBER 5 Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure. Petitioner received the grades of 3, 2 and 2, for an overall score of 2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little. Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing. Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively. Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous." PROCEDURE NUMBER 6 Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability. The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous." PROCEDURE NUMBER 8 Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation. Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth. Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively. Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed. PROCEDURE NUMBER 9 Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish. Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6. The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry. PROCEDURE NUMBER 10 Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners. According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure. A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head. As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it. PROCEDURE NUMBER 11 Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld. Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Robert Dyer, Esquire Duckworth, Allen, Dyer and Pettis, P.A. 400 West Colonial Post Office Box 3791 Orlando, Florida 32802 Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented is whether Petitioner achieved a passing score on the June 1999 Florida dental licensure examination.
Findings Of Fact Petitioner is licensed to practice dentistry in California and was also licensed in Georgia until he permitted his Georgia license to become inactive. He has been engaged in the active practice of dentistry for thirteen years. He has never been sued. Petitioner took the June 1999 clinical portion of the Florida dental licensure examination. He was subsequently advised that he had not achieved a passing score. Petitioner challenges the score he received on two portions of the clinical examination: his amalgam cavity preparation on the patient and his endodontic procedure on an extracted tooth. Petitioner's patient had a cavity between two teeth, although it was much lower than the contact point. The patient also had a large non-contiguous cavity in the front of the same tooth. Petitioner determined that he wished to save as much of the tooth as possible knowing that the large cavity in the front of the tooth would need to be filled. Because of the manner in which it was necessary to prepare the tooth to preserve the maximum amount of structure, he generated a monitor note explaining his approach. When he located the monitor to whom he would turn in his note, that monitor was busy viewing another patient and motioned for Petitioner to place the note at the monitor's station. Petitioner placed the note in the monitor's chair and returned to his patient. Petitioner completed the preparation procedure. While doing so, he noticed that his patient's tooth had a dead tract, a rare dental defect that would not interfere with the process. This was only the second time that Petitioner had seen a dead tract in a tooth despite his many years of practice. The first time had been while Petitioner was in dental school When his patient was graded, two of the three graders gave Petitioner a score of "0," noting that caries remained. The third grader saw no caries but noted debris remained. What the two examiners mistook for further decay was the dead tract. No debris remained. The other comments of the graders suggested that they had not seen the monitor note generated by Petitioner explaining the manner in which he was preparing the tooth and why. Despite the alleged presence of decay, Petitioner was instructed to proceed to fill the cavity. The extracted tooth on which Petitioner performed his endodontic procedure was an "easy" tooth with large canals. One grader gave Petitioner a "5," which is a perfect score. One grader gave him a "3," and the other gave him a "0." Only the grader who gave Petitioner the "0" noted that the tooth was perforated. The tooth Petitioner worked on had no perforation on the inside, and the x-rays taken during the process revealed no file or gutta percha filling off to the side of the canals. Petitioner did not perforate the tooth during his endodontic procedure. Petitioner properly performed both the amalgam cavity preparation on his patient and the endodontic procedure on the extracted tooth. He should be awarded full points on both procedures. The additional points are sufficient to give Petitioner a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a passing score on the June 1999 dental licensure examination. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2000. COPIES FURNISHED: Bill Buckhalt, Executive Director Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Gregory K. Barfield 2555 Collins Road, Penthouse 114 Miami Beach, Florida 33140 Gregory K. Barfield Post Office Box 102 Rancho Sante Fe, California 92067 Adam Keith Ehrlich, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue in this case is whether Petitioner, Jennifer Lee Brown, D.M.D., should receive a passing grade on the December 1997 Florida dental licensure examination.
Findings Of Fact Petitioner, Jennifer Lee Brown, D.M.D., is a graduate from the University of Florida College of Dentistry. Respondent, the Department of Health (hereinafter referred to as the "Department"), is responsible for the licensure of dentists in the State of Florida. In December 1997 the Florida Department of Business and Professional Regulation, on behalf of the Department, administered the Florida dental licensure examination which persons wishing to practice dentistry in the State were required to pass. Dr. Brown took the December 1997 dental examination (hereinafter referred to as the "Examination"). The Examination consisted of clinical, Florida laws and rules, and oral diagnosis parts. The clinical portion of the Examination consisted of 8 procedures: procedures 1-3 and 5-9. Each procedure was graded by three separate examiners. The scores awarded by the three examiners on each procedure were averaged, resulting in a truer score. Each procedure had standardized "comments" concerning a candidate's performance on the procedure which examiners could note. Examiners were selected from individuals recommended by existing examiners or members of the Board of Dentistry (hereinafter referred to as the "Board"). Prospective examiners could not have any complaints against their license and they were required to have actively practiced dentistry and to be licensed as a dentist in Florida for a minimum of five years. Prospective examiners were required to file an application with the Board's examination committee. Prior to the Examination, a "standardization" session was conducted for the examiners selected. During the session, examiners were trained how to grade the Examination using the same internal criteria. The standardization session was conducted by assistant examiner supervisors appointed by the Board. After completion of the standardization session, and before the Examination, examiners were required to grade five mannequin models in order to evaluate the examiners' understanding of the grading criteria. Each examiner's performance was evaluated to determine whether the examiner should be used during the Examination. The examiners who graded Dr. Brown's clinical part of the Examination were designated as Examiners 168, 176, 195, 207, 264, 290, 298, and 299. All of these examiners completed the standardization session and the post-standardization evaluation. During the clinical part of the Examination, the examiners were required to grade each procedure independently, without conferring with each other. The clinical part of the Examination was "double blind" graded. Examiners did not see the candidates they were grading or watch their work. The test procedures were performed in a clinic in the presence of a licensed dentist. After the procedure was completed, the patient or tooth was taken to another clinic where the examiners reviewed the work performed on the patient and graded the procedure. The examiners had no direct contact with any candidate. Candidates were permitted to use "monitor-to-examiner" notes to convey information to the examiners that a candidate wanted the examiners to take into consideration when grading a procedure. Any such notes were read by the examiners and initialed "SMN" (saw monitor note) before they actually looked at the patient or tooth. For the clinical part of the Examination the following grading system was used: Zero: complete failure; One: unacceptable; Two: below minimally acceptable. Three: minimally acceptable. Four: better than minimally acceptable. Five: outstanding. After the Examination was graded, all examiners underwent a post-examination evaluation. Grades awarded by each examiner were compared to other examiners for consistency. All of the examiners who graded Dr. Brown's clinical part of the Examination were found to have performed acceptably. Dr. Brown was subsequently informed that she had failed to obtain the minimum passing grade of 3.00 for the clinical part of the Examination. Dr. Brown was informed that she had been awarded a score of 2.67. Dr. Brown was also informed that she passed the other two parts of the Examination. Dr. Brown challenged the scores she had been awarded on the clinical part of the Examination for procedures 2, 5, 6, 7, 8, and 9. The procedures challenged were graded by examiners 176 (graded all the challenged procedures), 195 (graded procedures 5- 9), 207 (graded procedure 2), 298 (graded procedure 2), and 299 (graded procedures 5-9). The Department conceded that the scores awarded Dr. Brown on procedures 7 and 8 were incorrect. As a result, the Department agreed that Dr. Brown's overall score for the clinical part of the Examination should be raised to 2.82. The evidence failed to prove that Dr. Brown should have received a higher score on procedures 7 and 8. Procedure 2 consisted of an amalgam (filling)n preparation on a human patient. Dr. Brown was required to select a tooth and, after the selected tooth was checked by an examiner, complete preparation for the amalgam. Dr. Brown wrote three monitor-to-examiner notes during procedure 2. All three examiners wrote "SMN" on all three notes. Dr. Brown received an average score on procedure 2 of 3.66. Dr. Brown was awarded the following individual scores for her performance on procedure 2: Examiner Score 176 4 207 4 298 3 Examiners 176 and 298 noted the following comment concerning Dr. Brown's performance on procedure 2: "Depth Prep." Examiner 298 also noted the following comment: "Marginal Finish." Examiner 207 noted the following comment: "Retention Form." Dr. Brown admitted that her performance on procedure 2 was not ideal, but expressed concern that she was graded down for matters dealt with in the monitor-to-examiner notes. Dr. Shields opined that it was possible for the examiners to have reduced the score awarded to Dr. Brown on procedure for depth preparation, marginal finish, and retention form and not have graded her down for the monitor-to-examiner notes. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 2 of the clinical part of the Examination. Dr. Brown received a fairly consistent score from all three graders. Procedure 5 was a "class IV composite restoration." This procedure involved the selection of a tooth by Dr. Brown which she was then required to make a slice cut on to replicate a fracture. Dr. Brown was then required to restore the simulated fractured tooth to its normal contour and function. The procedure was performed on a mannequin. Dr. Brown received an average score of 1.66 on procedure 5. Dr. Brown was awarded the following individual scores for her performance on procedure 5: Examiner Score 176 3 195 0 299 2 Examiners 176 and 195 noted the following comment concerning Dr. Brown's performance on procedure 5: "Proximal Contour." Examiners 176 and 299 noted the following comment concerning Dr. Brown's performance on procedure 5: "Margin." Finally, the following additional comments were noted by the examiners: Examiner Comment: 195 Functional Anatomy Mutilation of Adjacent Teeth 289 Gingival Overhang Dr. Brown's challenge to her score for procedure 5 was essentially that Examiner 199 had given her such a low score on this procedure and procedures 7 through 9 when compared to the scores awarded by Examiners 176 and 298. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 5. Dr. Shields' opinion was based generally upon his 21 years of experience as a dentist. More specifically, Dr. Shields based his opinion upon his examination of the actual tooth that Dr. Brown performed procedure 5 on. Dr. Shields found excess material left at the gingival or gum portion of the tooth. Dr. Shields also found that Dr. Brown attempted to polish the material off and had flattened some of the surface of the tooth. Apparently, based upon Examiner 195's comment notes, Examiner 195 was the only examiner to catch these deficiencies in Dr. Brown's performance on procedure 5. Dr. Shields also found slight damage on the mesial, the approximating surface of the lateral incisor, the tooth next to the tooth that was restored. The evidence failed to prove that Dr. Shields' opinions concerning Dr. Brown's performance on procedure 5 were not reasonable and accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 5 of the clinical part of the Examination. Procedure 6 required that Dr. Brown perform an Endodontic Evaluation of the Maxillary First Premolar. Dr. Brown was required to select an extracted tooth, a maxillary tricuspid, examine x-rays of the tooth, and then perform a root canal on the tooth. The tooth had two roots. The root canal involved creating an opening in the tooth and removing the pulpal tissue from the two nerve canals of the tooth (a debridement). The canals were to be shaped for an obturation or the filling of the canal. A final x-ray of the tooth was taken after the procedure was completed. Dr. Brown received an average score on procedure 6 of 1.00. Dr. Brown was awarded the following individual scores for her performance on procedure 6: Examiner Score 176 3 195 0 299 0 All three examiners noted the following comment for Dr. Brown's performance on procedure 6: "Proper Filling of Canal Spaces with Gutta Percha." Gutta Percha is the material that was used by Dr. Brown to fill the canal of the roots after she completed the debridement. Examiner 195 noted the following additional comment for Dr. Brown's performance on procedure 6: "Access Preparation." Examiner 299 noted the following additional comment: "Shaping of Canals." Dr. Brown's challenge to her score for procedure 6 was based in part on her concern that Examiners 199 and 299 had given her a score of 0 on this procedure while Examiner 176 had given her a score of 3. Dr. Brown admitted that she had caused the gutta percha to extrude through the apex of the canals. She argued, however, that gutta percha is reabsorbed by the patient. Therefore, Dr. Brown suggested that her performance was "clinically acceptable." Dr. Brown questioned how one examiner, Examiner 176, could conclude that her performance was in fact clinically acceptable, while the other two examiners concluded it was not. The difficulty with Dr. Brown's position with regard to procedure 6 is that she assumes that the only deficiency with her performance was the extrusion of gutta percha and that it was not a significant deficiency. The evidence failed to support this position. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 6. His opinion was based upon the fact that the extrusion of gutta percha was very significant on one of the canals: it extended a millimeter and a half. On the other canal it was a half of a millimeter. Filling the canal one half millimeter to a millimeter is considered ideal. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. During the standardization session, examiners were told that extrusion of gutta percha more than a half millimeter through the apex was to be considered an error of major consequence. Candidates who extruded guttal percha more than a half millimeter were not to receive a grade higher than one. In light of the instructions during the standardization session, it was more likely that Examiner 176 gave Dr. Brown too high of a score on procedure 6. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 6 of the clinical part of the Examination. Procedure 9 was a pin amalgam final restoration. Although this procedure involved, in a lay person's terms, a filling, what exactly was involved in this procedure was not explained during the formal hearing. Dr. Brown received an average score on procedure 9 of 1.66. Dr. Brown was awarded the following individual scores for her performance on procedure 9: Examiner Score 176 4 195 0 299 1 All three examiners noted the following comment concerning Dr. Brown's performance on procedure 9: "Functional Anatomy." Examiners 195 and 299, who both graded Dr. Brown below minimal acceptability, also noted the following comments: "Proximal Contour," "Contract," and "Margin." Dr. Brown failed to present any evidence to support her claim that she should have received a higher score for procedure Dr. Brown simply questioned the fact that Examiner 195 had graded her low on all the clinical procedures. Dr. Shields opined that Dr. Brown should not receive a higher score on procedure 9. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 9 of the clinical part of the Examination. Dr. Brown's challenge in this case was based largely on the fact that Examiner 195 had graded her performance on procedures 5, 6, and 9 as a zero, procedure 7 as a one, and procedure 8 as a two. Other than the fact that Examiner 195's scores were consistently low, the evidence failed to prove that Examiner 195 improperly graded Dr. Brown except as conceded by the Department on procedures 7 and 8. Comparing the scores awarded by Examiner 195 to Examiner 176 does raise some question as to why there was such a discrepancy in the two examiners' scores. When the scores on procedures 5, 6, and 9 of all three examiners are compared, however, Examiners 195 and 298 generally were consistently below acceptable, while Examiner 176's scores were generally higher on these three procedures: Examiner Procedure 5 Score Procedure 6 Score Procedure 9 Score 176 3 3 4 195 0 0 0 299 2 0 1 This simple mathematical comparison, however, is not sufficient to conclude that Examiner 195 scored too low or that Examiner 176 scored too high. Other than a simple comparison of the scores of the three examiners, the only evidence concerning whether Examiner 195 graded too low based upon the scores alone was presented by Ms. Carnes, an expert in psychometrics. Ms. Carnes opined that Examiner 195's performance was acceptable, except with regard to procedures 7 and 8. The evidence failed to refute Ms. Canres' opinion. Based upon the weight of the evidence, Dr. Brown's score for the clinical portion of the Examination, as adjusted by the Department during the final hearing of this case, was reasonable and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health, Board of Dentistry, dismissing Dr. Brown's challenge to the amended grade awarded for the clinical part of the December 1997 Dental Examination. DONE AND ENTERED this 14th day of September, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1998. COPIES FURNISHED: Jennifer Brown Post Office Box 39 Starke, Florida 32091-0039 Anna Marie Williamson, Esquire Office of the General Counsel Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 William Buckhalt, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 466.028(1)(y) and (m), issuing a reprimand, imposing a fine of $6,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. DANIEL MANRY 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 1st day of August 1995.
The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
The Issue The issue in this case is whether the Petitioner's application for certification by examination as a basic X-ray machine operator should be approved or denied.
Findings Of Fact In February 2009, the Petitioner submitted an application to the Respondent for certification by examination as a basic X-ray machine operator. The application was submitted by “Ultimate Medical Academy” (UMA), where the Petitioner obtained his basic X-ray training, but the Petitioner provided the information contained therein and was responsible for the accuracy of the application. On the Petitioner’s application, he stated that he was employed in “basic x-ray” at Palm Harbor MRI, and indicated that “100%” of his time at Palm Harbor MRI was related to duties other than radiography, nuclear medicine, or radiation therapy. On February 19, 2009, the Respondent notified the Petitioner that the application was incomplete because it lacked a criminal history record from the Florida Department of Law Enforcement. On April 14, 2009, the Respondent received the Petitioner’s criminal history record, which revealed convictions between the years 1993 and 2002, and related periods of incarceration, for retail theft, felony grand theft, felony uttering of forged checks, other forgeries, and failure to appear. The Petitioner was also convicted of federal crimes, including possession of counterfeited checks in 2000 and felony uttering a forged check in 2002. The Petitioner spent three years in federal prison and, in December of 2003, was transferred to a halfway house after his release. His most recent sentence included a probationary period that expired at the end of May of 2007. As part of the application process, the Petitioner advised the Respondent that his civil rights had been restored on January 31, 2008. The Petitioner provided documentation to the Respondent that spelled his first name as “Erin.” For purposes of this Recommended Order, the restoration of civil rights has been deemed applicable to the Petitioner. The Respondent reviewed the Petitioner’s application, including the criminal history and the restoration of civil rights, and denied the application because of the Petitioner’s criminal history. The specific basis for the denial was the Respondent’s concern with the access an X-ray operator has to the personal belongings and medications of a patient while X-ray images are obtained, as well as to the personal and medical information contained within patient records. After receiving the Respondent’s decision, the Petitioner requested an administrative hearing to challenge the denial. After issuing the initial Notice of Intent to Deny, the Respondent became aware of potential issues related to the Petitioner’s employment during and after his training at UMA. As part of his educational training, UMA placed the Petitioner into an externship at Palm Harbor MRI for a six-week period of clinical practice. The externship ended on April 4, 2008, when he graduated from the UMA. The quality of the Petitioner’s job performance at Palm Harbor MRI is not at issue in this proceeding. There is no evidence that he was not competent to perform the tasks assigned to him during the externship. On April 9, 2008, the Petitioner began working as a full-time employee at Palm Harbor MRI. He performed some customer contact duties, greeting patients and gathering information. His duties also included placing and positioning patients on the X-ray table, imputing the machine settings (“technique”) and operating the X-ray machine, including the administration of radiation to obtain the desired images. Positioning patients for X-rays, machine technique, and operating the radiation equipment constitutes the practice of radiologic technology. The Petitioner was supervised by a licensed technician at all times during his positioning of patients and operation of the machine. The Petitioner performed these duties without being properly licensed. After the Respondent learned of the Petitioner’s job responsibilities at Palm Harbor MRI, the Respondent issued an Amended Notice of Intent to Deny that identified the alleged unlicensed activity as an additional basis for denial of the application. The Respondent also initiated a review of the Palm Harbor MRI facility’s operating procedures that was continuing at the time of the hearing. The application information originally disclosed by the Petitioner was inaccurate because it failed to reveal that he was involved in performing radiography at Palm Harbor MRI. In May 2009, the office manager at Palm Harbor MRI requested that the Petitioner provide a copy of his certificate, apparently unaware that the Petitioner had no license at that time. When he was unable to provide the certificate, his employment was terminated on May 18, 2009. The Petitioner has asserted that he was exempt from licensure because he was a student attending St. Petersburg College (SPC) with the intention of being admitted to the SPC radiologic technology program, and ultimately to become licensed as a radiography technologist. Students attending a medical school or “enrolled in and attending” a radiologic technology educational program are statutorily exempt from licensure during their educational period; however, there is no evidence that UMA students are entitled to the exemption. Although SPC has a radiologic technology educational program, the Petitioner has neither been admitted to the program nor attended any classes within the program’s curriculum. Additionally, Palm Harbor MRI is not an approved clinical training site for students enrolled in and attending the SPC radiography program. The Petitioner had not applied to the SPC radiography program prior to termination of his employment from Palm Harbor MRI, and the applications subsequently submitted by the Petitioner for application to the SPC radiography program were denied. There was no credible evidence presented at the hearing that the Petitioner was a medical student or was enrolled in and attending a radiologic technology educational program at any time relevant to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying the Petitioner's application for certification by examination as a basic X-ray machine operator. DONE AND ENTERED this 29th day of December, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2009. COPIES FURNISHED: Donna Erlich, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 C. Erica White, Esquire Quintairos, Prieto, Wood & Boyer, P.A. 215 South Monroe Street, Suite 510 Tallahassee, Florida 32301 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
