00-001720 Gloria Patricia Jimenez vs. Department Of Health Status: Closed Recommended Order on Wednesday, October 18, 2000.

Summary: Petitioner failed to prove that Respondent scored answers to questions on Florida Medical Licensure Examination in an arbitrary or capricious manner or that questions were vague and ambiguous. Petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA PATRICIA JIMENEZ, )

)

Petitioner, )

)

vs. ) Case No. 00-1720

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on August 18, 2000, via video teleconference in Miami, Florida,

and in Tallahassee, Florida, before Patricia Hart Malono, the

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gloria Patricia Jimenez, pro se

7765 Southwest 86 Street

Unit F2, Apartment 209

Miami, Florida 33143

For Respondent: William W. Large, General Counsel

Department of Health

Office of the General Counsel

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether the Petitioner should receive credit for her

answers to certain specified questions on the Clinical

Application of Medical Knowledge portion of the Florida Medical

Licensure Examination administered November 19 and 20, 1999.

PRELIMINARY STATEMENT

Gloria Patricia Jimenez sat for the Florida Medical

Licensure Examination ("FMLE") on November 19 and 20, 1999. In

an Examination Grade Report dated January 27, 2000, the

Department of Health ("Department") advised Ms. Jimenez that she

had achieved a score of 347 on the Clinical Application of

Medical Knowledge portion of the examination and had, therefore,

failed that portion of the examination because she had not

attained the passing score of 350. Ms. Jimenez timely requested

an administrative hearing to contest the grading of her answers

to several questions on the examination. The Department

transmitted the matter to the Division of Administrative

Hearings for the assignment of an administrative law judge.

Pursuant to notice, the final hearing was held by video

teleconference on August 18, 2000.

Prior to the hearing, Ms. Jimenez amended her request for

an administrative hearing, and, in a second amendment filed

August 11, 2000, she specified that her challenge was limited to

the grading of her answers to questions 3, 11, 55, 81, 174, and

183 of Part IIA of the examination and to question 113 of Part

IIB of the examination. The Department stated at the start of

the final hearing that it had given credit to Ms. Jimenez for

her answer to question 174 of Part IIA of the examination and

that her revised score was 348.

At the hearing, Ms. Jimenez testified in her own behalf,

and Petitioner's Exhibits 1 through 6 were offered and received

into evidence. The Department presented the testimony of Walter

Chason, a psychometrician employed by the Department, and of

Anh-Vu Tien Nguyen, an expert in the field of primary care

medicine. Respondent's Exhibits 1 through 9 and 11 were offered

and received into evidence. At the Respondent's request,

official recognition was taken of Section 90.616, Florida

Statutes (1999); Sections 455.574, .581, and .647, Florida

Statutes (1999); Sections 458.311, .3115, .31151, .3124, .313,

and 314, Florida Statutes (1999); Rule Chapters 64B-1, 64B8-5,

64B8-14, and 64B8-15, Florida Administrative Code; and

Rules 64B8-4.001, 4.018, and 4.0 27, Florida Administrative Code.

The one-volume transcript of the proceeding was filed with

the Division of Administrative Hearings on September 8, 2000,

and the parties timely filed proposed findings of fact and

conclusions of law. In her proposed findings of fact and

conclusions of law, Ms. Jimenez stated that she no longer

disputed the correctness of the Department's answer to question

55 of Part IIA of the FMLE. The proposed findings of fact and

conclusions of law have been considered in preparing this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Health is the state agency

responsible for licensing and regulating physicians practicing

medicine in Florida, including foreign-licensed physicians.

Sections 458.311 and 458.3115, Florida Statutes (1999);

Rule 64B8-5.002, Florida Administrative Code.

2. In order to be issued a restricted license to practice

medicine in Florida, a foreign-licensed physician must pass the

FMLE, an examination that is developed by the Department and

that consists of two parts; Part I tests a candidate's knowledge

of Basic Science and Disease Processes, and Part II tests a

candidate's knowledge of Clinical Applications of Medical

Knowledge.

3. Ms. Jimenez was accepted as a candidate for the FMLE

and sat for the examination on November 19 and 20, 1999. At the

time of the hearing, Ms. Jimenez had attained a sc aled score of

348 on the Clinical Application of Medical Knowledge portion of

the FMLE; a scaled score of 350 is required to pass Part II of

the examination.

4. The questions that comprise the Clinical Application of

Medical Knowledge portion of the FMLE are objective, multiple-

choice questions drawn from a bank of questions written by

physicians, field-tested, reviewed, and edited. A

psychometrician employed by the Department oversees the

development of the examination questions.

5. The questions for the November 1999 FMLE were drawn

from the bank of questions in accordance with a test blueprint

developed by a committee of physicians, and the questions were

compiled into an examination. A committee of physicians then

reviewed the examination to determine whether it would

adequately and reliably test the candidate's ability to practice

medicine with reasonable care and safety. A psychometrician

employed by the Department oversaw the process of compiling the

examination.

6. The Department sends each candidate registering to take

the FMLE a Candidate Information Booklet which contains, among

other things, information about the test, the material to be

covered on the test, sample questions, and a list of reference

books that the candidates should consult in preparing for the

examination.

7. Ms. Jimenez disputes the Department's determination

that the answers she gave to questions 3, 11, 81, and 183 of

Part IIA and to question 113 of Part IIB of the FMLE

administered November 19 and 20, 1999, were incorrect.

8. According to the Department, the correct answer to

question 3 of Part IIA of the examination is "C"; Ms. Jimenez

chose answer "D." Question 3 is clear and unambiguous, the

question contains sufficient information to answer the question

correctly, and the question has only one correct answer, which

is included among the choices provided. The correct answer can

be found in the reference book entitled Harrison's Principles of

Internal Medicine , 14th Edition, 1998, which is included in the

list of reference books provided to candidates for the

examination. In this treatise, medical therapy is identified as

the preferred treatment for distal dissection, that is, for a

Type B or descending aortic dissection. "C" is, therefore, the

correct answer to question 3 of Part IIA of the FMLE, and

Ms. Jimenez should not receive credit for her answer because the

answer she gave is not the correct answer.

9. According to the Department, the correct answer to

question 11 of Part IIA of the examination is "A"; Ms. Jime nez

chose answer "D." Question 11 is clear and unambiguous, the

question contains sufficient information to answer the question

correctly, and the question has only one correct answer, which

is included among the choices provided. The correct answer can

be found in the reference book entitled Harrison's Principles of

Internal Medicine , 14th Edition, 1998, which is included in the

list of reference books provided to candidates for the

examination. In this treatise, it is observed that significant

changes in the QRS complexes are consistent with acute

myocardial infarction; all other answer choices are consistent

with a diagnosis of acute pericarditis. "A" is, therefore, the

correct answer to question 11 of Part IIA of the FMLE, and

Ms. Jimenez should not receive credit for her answer because the

answer she gave is not the correct answer.

10. According to the Department, the correct answer to

question 81 of Part IIA of the examination is "B"; Ms. Jimenez

chose answer "A." Question 81 is clear and unambiguous, the

question contains sufficient information to answer the question

correctly, and the question has only one correct answer, which

is included among the choices provided. The correct answer can

be found in the reference book entitled Harrison's Principles of

Internal Medicine , 14th Edition, 1998, which is considered an

authoritative text by physicians and which is included in the

list of reference books provided to candidates for the

examination. In this treatise, it is observed that the

prevalence of MS varies significantly among different ethnic

groups. "B" is, therefore, the correct answer to question 81 of

Part IIA of the FMLE, and Ms. Jimenez should not receive credit

for her answer because the answer she gave is not the correct

answer.

11. According to the Department, the correct answer to

question 183 of Part IIA of the examination is "A"; Ms. Jimenez

chose answer "D." Question 183 is clear and unambiguous, the

question contains sufficient information to answer the question

correctly, and the question has only one correct answer, which

is included among the choices provided. The correct answer can

be found in the reference book entitled Novak's Gynecology , 12th

Edition, 1998, which is considered an authoritative text by

physicians and which is included in the list of reference books

provided to candidates for the examination. The question

elicits the answer identifying the treatment that is most

appropriate for the described patient, and, in the treatise, it

is observed that hormone replacement therapy is indicated for

women who are menopausal and have no contraindications. "A" is,

therefore, the correct answer to question 183 of Part IIA of the

FMLE, and Ms. Jimenez should not receive credit for her answer

because the answer she gave is not the correct answer.

12. According to the Department, the correct answer to

question 113 of Part IIB of the examination is "A"; Ms. Jimenez

chose answer "D." Question 113 is clear and unambiguous, the

question contains sufficient information to answer the question

correctly, and the question has only one correct answer, which

is included among the choices provided. The correct answer can

be derived from information found in the reference books

entitled Harrison's Principles of Internal Medicine , 14th

Edition, 1998, and Robert B. Taylor's Family Medicine:

Principles and Practice , 5th Edition, 1997, which are considered

authoritative texts by physicians and which are included in the

list of reference books provided to candidates for the

examination. The question elicits the answer identifying the

intervention that is most appropriate for the described patient.

It can be determined from the information contained in the

treatises that the patient described in the question should not

be treated with drugs but, rather, should be treated with diet

and exercise. "A" is, therefore, the correct answer to question

113 of Part IIB of the FMLE, and Ms. Jimenez should not receive

credit for her answer because the answer she gave is not the

correct answer.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (1999).

14. Ms. Jimenez has the burden of proving by a

preponderance of the evidence that the Department's decision to

give her no credit for her answers to the challenged examination

questions is arbitrary or capricious or constitutes an abuse of

discretion. See State ex rel. Glasser v. J. M. Pepper , 155 So.

2d. 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of

Electrical Examiners , 101 So. 2d. 583 (Fla. 1st DCA 1958).

Based on the facts found herein, Ms. Jimenez has failed to meet

this burden with respect to questions 3, 11, 81, and 183 of Part

IIA and to question 113 of Part IIB of the FMLE administered

November 19 and 20, 1999.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health enter a

final order dismissing the petition of Gloria Patricia Jimenez

challenging questions 3, 11, 81, and 183 of Part IIA and

question 113 of Part IIB of the Florida Medical Licensure

Examination administered November 19 and 20, 1999..

DONE AND ENTERED this 18th day of October, 2000, in

Tallahassee, Leon County, Florida.

_________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of October, 2000.

COPIES FURNISHED:

Gloria Patricia Jimenez

7765 Southwest 86 Street

Unit F2, Apartment 209

Miami, Florida 33143

William W. Large, General Counsel

Department of Health

Office of the General Counsel

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

M. Catherine Lannon, Esquire

Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

Theodore Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.