STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 77-049

)

GEORGE SELIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on June 1, 1977, in Judge Nelson's Courtroom, Division E, Volusia County Courthouse, Daytona Beach, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was heard on a letter of complaint dated January 5, 1977, to George Selis from Barbara Dell McPherson as Staff Attorney for the Department of Health and Rehabilitative Services, State of Florida. This letter of complaint alleges that George Selis had fitted and sold a hearing aid to Daisy Binder although at the time the hearing aid was fitted and sold, Binder had a large accumulation of impacted cerumen in both of her ears; and that by doing so Selis had violated Sections 468.129(3) and 468.135(5), Florida Statutes. Further, that Selis had fitted and sold a hearing aid to Augusta Miller after advising her that the hearing aid was absolutely necessary to preclude progressive loss of hearing and complete deafness, and that said statement constituted making a prediction or prognostication as to the future course of a hearing impairment contrary to the provisions of Section 468.130(11), Florida Statutes.

APPEARANCES

For Petitioner: Robert Eisenberg, Esquire

Department of Health and Rehabilitative Services

Post Office Box 2417 F Jacksonville, Florida 32231

For Respondent: Leuis Ossinsky, Jr., Esquire

Ossinsky and Krol

411 Main Street

Post Office Drawer E Daytona Beach Florida 32018

FINDINGS OF FACT

1. George Selis holds certificate of registration Number 695-04-73 to fit and sell hearing aids in the State of Florida, and this certificate of registration was issued by the Department of Health and Rehabilitative Services.

2. On August 9, 1976, George Selis did fit and sell a hearing aid to Daisy Binder. On that date George Selis examined the ears of Daisy Binder prior to giving her a hearing test and according to his testimony observed a quantity of cerumen, or ear wax, in her ears. At that time, according to Selis, the ear canal was not blocked or impacted by the cerumen. In accordance with his experience and training, it was not improper for Selis to test an individual's hearing when cerumen was observed in the ear canal as long as the ear canal was not blocked. On August 24, 1976, Daisy Binder was examined by Dr. Herbert King, M.D., who determined that both of her ears were impacted with cerumen. In Dr. King's medical opinion, from the quantity of wax present on August 24, 1976, an excessively large quantity of wax would have been present on August 9, 1976, when Daisy Binder's ears were examined by George Selis. Dr. King's medical opinion is buttressed by the medical records of Binder which show she had had her ears irrigated and impacted cerumen removed roughly every two years for four years prior to August, 1976.

   
   

3. George Selis sold and fitted a hearing aid to Augusta Miller on or about August 24, 1975. Regarding the testing of hearing of his client, Selis explained that prior to every test he explained to the client the way the test was conducted and what the results meant. The handwritten lines and annotations on the hearing test of Augusta Miller, Exhibit 20, had a diagram on the back of this test relating to Selis' explanation of the test and its operation on the ear. In this explanation Selis explained that a hearing loss of 30 decibels or less is normal, that a hearing loss between 30 decibels and 80 decibels may not be correctable. Selis also explained the fact that hearing aids cannot help certain hearing losses and that certain types of hearing losses can be treated medically. Regarding the type of loss which a hearing aid can help, Selis explained that the use of the hearing aid does not stop the loss and that the loss may continue to the extent that the hearing aid will no longer offer any assistance. Selis represented that it was this explanation which he gave to Augusta Miller on August 24, 1975, when he fitted and sold her a hearing aid.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 468.13(5), Florida Statutes, provides that medical clearance will be obtained when upon inspection of the ear canal with an otoscope there is an observable anomaly. The statute further provides that the client will be instructed to see a physician and a hearing aid shall not be fitted until medical clearance is obtained. The factual question is whether the existence of cerumen in the ear is an anomaly. Certainly one would expect to find cerumen, or ear wax, in the ear. However, Webster's New Collegiate Dictionary defines anomaly as a deviation from the common rule of something which is anomalous. Anomalous is defined by the same source as deviating from the general rule or inconsistent with what would be naturally expected. Because one would normally expect to find cerumen in the ear, some additional condition regarding the cerumen would have to exist for it to be determined to be anomalous. Dr. King's testimony is quite clear, that the quantity of cerumen present on August 24, 1976, was excessive and in his opinion would have been excessive on August 9, 1976 when George Selis fitted and sold the hearing aid to Daisy Binder. The question of whether the ear canal would be clear and whether an effective test could be conducted is immaterial. The statute does not prohibit the testing of hearing but the fitting and sale of hearing aids. Having factually determined that George Selis fitted and sold a hearing aid to Daisy Binder after he had observed an anomaly requiring a doctor's clearance prior to fitting and selling the hearing aid, the primary issue which must be determined is whether his actions constitute gross malpractice in violation of Section 468.129(3).

5. Gross malpractice has not been defined by the statute and no cases have interpreted the provision. Malpractice is a term generally applicable to the cases involving negligence. Therefore, the term carries with it the concept of an injury resulting from the charged party's acts. No injury was shown in this case. Further, the term "gross" is generally applied to negligent conduct to indicate some act beyond simple negligence, of a nature that it approaches wreckless or willfully malicious conduct. The facts in this case do not constitute gross malpractice. Although Selis did violate the terms of Section 468.135, his conduct does not constitute gross malpractice and violation of Section 468.129(3), Florida Statutes. Section 468.129(4) provides that any violation of Part III of Chapter 468 may be a basis for suspension or revocation. Selis was charged in the Complaint with violation of Section 468.135(5), Florida Statutes, and the facts show that he did violate that provision. Therefore, Selis is in violation of Section 468.129(4), Florida Statutes. The Complaint having stated sufficient facts to put Selis on notice of the nature of the charge against him, the Hearing Officer concludes that Selis is in violation of Section 468.129(4), Florida Statutes.

   
   

6. Regarding the allegations of unethical conduct in the transaction with Augusta Miller, the provisions of Section 468.130(11) and (12), Florida Statutes, taken together would prevent even a general discussion with a customer of progressive hearing loss and prohibit a salesman from stating or implying that the use of any hearing aid will improve or preserve hearing, prevent a retired progression of hearing impairment or that a hearing aid will have any similar or opposite effect. According to Selis' own testimony, the contents of his explanation of the hearing test to Augusta Miller are prohibited by the statute. It is exactly the type of situation present in this case that the statute was designed to prevent. If the salesman is prohibited from discussing these matters, it prevents any misconception or misunderstanding from arising on the part of the customer regarding the nature of the test, the nature of their hearing loss and the type of assistance a hearing aid may give them.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the certificate of registration of George Selis be suspended for a period of 30 days.

DONE and ORDERED this 3rd day of August, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert Eisenberg, Esquire Department of Health and

Rehabilitative Services Post Office Box 2417 F Jacksonville, Florida 32231

Louis Ossinsky, Jr., Esquire Ossinsky and Krol

411 Main Street

Post Office Drawer E

Daytona Beach, Florida 32018

Docket for Case No: 77-000049

Orders for Case No: 77-000049