99-004052 Gregory K. Barfield vs. Department Of Health, Board Of Denistry Status: Closed Recommended Order on Wednesday, January 26, 2000.

Summary: Petitioner successfully challenged the score he received on the dental licensure examination, and the Department presented no competent evidence to the contrary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY K. BARFIELD, )

)

Petitioner, )

)

vs. ) Case No. 99-4052

)

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on November 16, 1999, in Miami,

Florida.

APPEARANCES

For Petitioner: Gregory K. Barfield, pro se

2555 Collins Road, Penthouse 114

Miami Beach, Florida 33140

For Respondent: Adam Keith Ehrlich, Esquire

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner achieved a

passing score on the June 1999 Florida dental licensure

examination.

PRELIMINARY STATEMENT

By examination grade report mailed July 20, 1999, the

Department notified Petitioner that he had failed the clinical

portion of the June 1999 Florida dental licensure examination,

and Petitioner timely requested an evidentiary proceeding

regarding that score. This cause was thereafter transferred to

the Division of Administrative Hearings to conduct the

evidentiary proceeding.

The Petitioner testified on his own behalf. The Department

presented the testimony of Thomas E. Shields, D.D.S., and, by

way of late-filed deposition, Marsha Carnes. Additionally,

Petitioner's Exhibits numbered 1-10 and the Department's

Exhibits numbered 1-17 were admitted in evidence during the

evidentiary proceeding. Leave was granted to the Department to

file after the hearing the deposition of Marsha Carnes, and the

Petitioner was granted leave to file copies of 13 pages from

identified textbooks. Those documents were filed and have been

considered as part of the evidence in this cause.

Both parties also filed after the hearing proposed

recommended orders. Those documents have been considered in the

entry of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

7. 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.

8. 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."

9. 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.

10. 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.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto.

Sections 120.569 and 120.57(1), Florida Statutes.

12. Section 466.006, Florida Statutes, requires the

passage of an examination to be licensed as a dentist in the

State of Florida. Subsection 466.006(4)(d), Florida Statutes,

authorizes the Board of Dentistry to enact rules determining the

passing score on the examination.

13. Rule 64B5-2.013(4)(a), Florida Administrative Code,

regulates grading the clinical portion of the dental examination

and provides that a grade of "0" is mandatory if caries or decay

remains. No caries remained in Petitioner's patient's tooth

when Petitioner completed his preparation. The dead tract was

misdiagnosed as caries by two out of three graders.

14. R ule 64B5-2.013(4)(c), Florida Administrative Code,

provides that a grade of "0" is mandatory if a perforation

occurs. Petitioner did not perforate the tooth in performing

his endodontic procedure.

15. Due to Petitioner's licensure as a dentist, he

testified both as to facts and as to his opinions regarding his

performance and the grades he should have received. On the

other hand, the Department presented no competent evidence as to

the work performed by Petitioner during the clinical portion of

the examination.

16. Although the Department presented the testimony of two

witnesses, neither of them was present when Petitioner took the

examination and neither of them was, therefore, able to testify

as to whether Petitioner properly performed the procedures.

They simply testified as to how graders are selected and

trained, how the examination is administered in general, and as

to the contents of grade sheets and other grade documentation

forms. Those documents, however, are hearsay and cannot form

the basis for a finding of fact as to what happened during the

examination. Section 120.57(1)(c), Florida Statutes. No grader

who scored Petitioner's clinical examination testified as to

what occurred or as to the accuracy of the scores assigned to

Petitioner.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.