STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1739

)

MORTON J. SCHOMER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 12, 1980, and February 25, 1981, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter arose on a nine-count Administrative Complaint filed by the Board of Optometry against Morton J. Schomer seeking to suspend or revoke his license or take other disciplinary action for alleged violations of Chapter 463, Florida Statutes, and Chapter 21Q- 3, Florida Administrative Code.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Michael B. Udell, Esquire

2020 Northeast 163rd Street, Suite 204 North Miami Beach, Florida 33162

ISSUE

The charges against Dr. Morton J. Schomer allege the following factual violations:

1. Failure to display his license at the location of his practice of optometry;

   
   

2. Failure to have an entry sign at the location of his practice indicating he was an optometrist practicing optometry;

   
   

3. Failure to have all equipment required in the office where he engaged in the practice of optometry; and

   
   

4. Failure to perform all tests and record the results as required for two patients, Edward Leswing and Steven Bachen.

Dr. Schomer was afforded the opportunity by the Board of Optometry for an informal conference to discuss the allegations. This conference was conducted.

Dr. Schomer requested the Board for a formal hearing, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57, Florida Statutes.

Prior to the formal hearing the Respondent moved to dismiss the proceedings and in support thereof asserted factual matters contrary to those alleged in the Administrative Complaint. Respondent asserted that he was working for Dr.

Ortelio Olazabal, was under the doctor's control and supervision, and was not engaged in the practice of optometry. Therefore, Respondent asserted that he was not required to display his license or to have an entry sign, and the Board lacked jurisdiction over because his practice with Dr. Olazabal was governed by Chapter 458, Florida Statutes, Medical Practice Act. This motion presented what were essentially affirmative defenses. The motion was denied by an order dated November 19, 1980. Respondent was afforded the opportunity to present evidence in support of his factual assertions at the formal hearing.

Respondent also moved for a continuance. This motion was also denied by the order mentioned above.

Respondent moved for an order in aid of discovery. The order cited above provided specific dates for the parties to complete various portions of prehoaring discovery and disclosure.

The parties were able to comply with the schedule established, and the formal hearing was begun on December 12, 1980. The hearing could not be completed on that date and was continued on February 25, 1981, after which the parties stipulated to submit proposed findings within 30 days. Motions for Directed Verdict by Respondent were made and denied at the close of Petitioner's case and at the conclusion of the hearing.

Proposed findings of fact were filed by Respondent. Petitioner did not file proposed findings. The Hearing Officer has read the proposed findings of fact submitted by the Respondent. To the extent that the following Findings of Fact do not contain the proposed findings, they have been rejected as not being relevant to the issues or not being based upon evidence adduced at the hearing, or as being inconsistent with evidence which the Hearing Officer deems more credible.

FINDINGS OF FACT

Counts I, II and V

1. Dr. Morton J. Schomer is an optometrist licensed by the Florida Board of Optometry for approximately the past five years. Until just prior to November, 1979, he was a practicing optometrist in Ohio. At that time he moved to Hallandale, Florida.

   
   

2. Dr. Schomer responded to a newspaper advertisement by Dr. Ortelio Olazabal and was hired by Dr. Olazabal to work as an optometrist at 518 NE 167th Street, North Miami, Florida. Dr. Schomer practiced optometry at that address three days per week from late November, 1979, until February, 1980.

   
   

3. During that time Dr. Schomer did not have his Florida license displayed and did not have an entry sign at that address indicating he was engaged in optometric practice. (Transcript, Volume II; December 12, 1380 - Page 236.)

   Count III

   
   

4. In January of 1980, Dr. Schomer examined Edward Leswing, a 57-year-old male who is an investigator for the Department of Professional Regulation. Dr. Schomer used a keratometer and phoropter to examine Leswing's eyes together with a projector and eye charts. Dr. Schomer asked Leswing about his health and conducted a field test (Transcript, supra - Pages 242 and 254). Dr. Schomer prescribed soft contact lenses and reading glasses for Leswing based on this examination. Dr. Schomer accurately recorded or caused to be recorded the results of the examinations conducted and pertinent personal data.

   
   

5. Dr. Schomer did not use a tonometer or retinoscope or perform an unaided visual acuity test on Leswing. (See Leswing's testimony and Dr. Michael Kondell's comments on Leswing's record, Dr. Kondell's Deposition - Pages 39 and 40.) In the opinion of Dr. Michael Kendell (Deposition - Page 59) Dr. Schomer's examination was insufficient to prescribe soft contact lenses for Leswing. Dr. Kondell is a physician specializing in ophthalmology. He is board eligible and is accepted as an expert in diseases of the eye and their treatment, and the examination of the eye for prescribing contact lenses and glasses.

   
   

   Count IV

   
   

6. At the time Leswing was examined, Dr. Schomer used a keratemeter, a phoropter, and projector and eye charts, and these items were present in the office (Transcript, Volume II; December 12, 1980 - Pages 238 and 239). Dr. Schomer used his hands to conduct a field test (Transcript, supra - Page 254). At the time Leswing was conducting a covert investigation and did not ask Dr. Schomer to produce or identify any of the equipment present in the office. Dr. Schomer kept his hand-held equipment in a wooden box which he covered with a clipboard.

   
   

   Count VI

   
   

7. Steven Bachen, a 14-year-old male, was seen by Dr. Schomer during January, 1980. Dr. Schomer accurately recorded or caused to be recorded the results of his examination of Bachen and his pertinent personal data. Dr. Schomer performed a keratometric and retinoscopic examination of Steven Bachen. (See Petitioner's Exhibit 12 and Deposition of Dr. Michael Kondell - Pages 36 through 38.) Dr. Schomer also used a phoropter to examine Steven Bachen's eyes (Transcript, Volume II; December 12, 1980 - Page 157). Dr. Schomer prescribed soft contact lenses for Bachen as a result of this examination. In the opinion of Dr. Kondell, Dr. Schomer's examination was sufficient to prescribe soft contact lenses for Steven Bachen (see Dr. Michael Kondell's Deposition - Pages 43 and 58).

   
   

   Count VII

   
   

8. During the examination of Steven Bachen, Dr. Schomer used a phoropter, keratometer, projector and charts, and retinoscope. These items were present in the office.

   
   

   Count VIII

   
   

9. At the time Dr. Schomer examined Steven Bachen he conducted a keratometric examination of Bachen. Bachen's glasses were removed when this examination was performed.

   Count IX

   
   

10. No evidence was introduced concerning prior violations of Chapter 463, Florida Statutes, by Dr. Schomer. The only evidence presented of violations of Chapter 463, supra, was with regard to Counts I through VIII above.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Board of Optometry has jurisdiction to take disciplinary action against the license which it issued to Dr. Schomer.

    
    

12. Dr. Schomer admitted that he did not post his Florida license or have an entry sign at the office at which he worked. The record clearly shows he was hired and practiced as an optometrist during the period of his employment. Section 463.011, Florida Statutes, plainly states that an optometrist will display his license at his office or place of business and exhibit it to representatives of the Department of Professional Regulation upon demand. There are no exceptions stated to this requirement in Chapter 463, Florida Statutes.

    
    

13. Rule 21Q-3.05, Florida Administrative Code, requires that an optometrist actively engaged in the practice of optometry or holding himself out as such a practitioner place or keep a sign at the entry of his office clearly denoting that he is engaged in the practice of optometry. There are no exceptions to this rule. Optometrists practicing with a physician must also indicate by a sign that they are engaged in the practice of optometry.

    
    

14. Dr. Schomer stated that his license was packed with his office equipment, and that he did not feel it was necessary to display the license or go to the expense of having a sign made because Dr. Olazabal's license was displayed and he was working for Dr. Olazabal. However, these reasons do not create an exception to the clear requirements of Section 463.011, Florida Statutes, or Rule 21Q-3.05, Florida Administrative Code.

    
    

15. Although Dr. Schomer is in technical violation of Section 463.011, Florida Statutes, and Rule 21Q-3.05, Florida Administrative Code, as alleged in Counts I, II and V of the Administrative Complaint, the recent administrative cases on optometry have not clearly enunciated the obligation of the optometrist in this regard when engaging in a joint practice with a physician. While provisions of the Medical Practices Act might lead one to believe that a person working For a physician is relieved of these obligations, the provisions of Chapter 463, Florida Statutes, and Chapter 21Q-3, Florida Administrative Code, are applicable at all times a licensee is practicing as an optometrist.

    
    

16. Dr. Schomer is alleged to have failed to have conducted all examinations required for vision analysis and to have failed to keep a complete record on the patient contrary to Rule 21Q-3.07, Florida Administrative Code. Rule 21Q-3.07, as written at the time in question in the Administrative Complaint, provided as follows:

    
    

    An examination for vision analysis shall include the following minimum procedures:

    1. Complete case history (recorded);

    2. Unaided visual acuity, and acuity with present correction, if any;

    3. External examination including

       cover test and visual field testing (confrontation or other);

    4. Ophthalmoscopic examination

       (direct or indirect) including a study of the media, fundus, blood vessels, cup disc ratio;

    5. Biomicroscopy (binocular or monocular;

    6. Static Retinoscopy or other objective refraction;

    7. Test for binocularity;

    8. Subjective refraction with recorded visual acuity;

    9. Tonometry;

    10. Other tests and procedures that may be indicated by case history or objective signs and symptoms discovered during the eye examination;

    11. Diagnosis and treatment.

        
        

17. The records kept by Dr. Schomer are accepted as accurate accounts of the tests performed. They reflect the doctor's examination of Leswing and Bachen. With both patients their basic data and presenting problem was recorded. Information was recorded that would indicate that each had their vision tested using the phoropter and viewing chart. This data was recorded and constitutes a subjective refraction. The record therefore reveals that Dr. Schomer created and kept a record of case history and subjective refraction as required by Rule 21Q-3.07, Florida Administrative Code, prior to its amendment. The current rule would require the recording of all test results to include negative findings.

    
    

18. The facts show Edward Leswing was prescribed soft contact lenses and reading glasses by Dr. Schomer as a result of Dr. Schomer's examination of Leswing. According to the records made by Dr. Schomer, Dr. Michael Kondell's comments on those records, and Leswing's testimony the following tests were not performed on Leswing:

    
    

    1. Static retinoscopy or other objective refraction;

    2. Tonometry; and

    3. Unaided visual acuity.

    
    

19. In Dr. Michael Kondell's expert opinion the tests performed by Dr. Schomer were not sufficient to properly prescribe soft contact lenses for Leswing. As alleged in Count III of the Administrative Complaint, Dr. Schomer did not perform all the tests necessary to properly deal with the presenting problem, i.e. the request of Edward Leswing to be fitted with contact lenses. Dr. Schomer violated Rule 21Q-3.07, Florida Administrative Code, as written at that time.

    
    

20. Steven Bachen was prescribed soft contact lenses by Dr. Schomer as the result of Dr. Schomer's examination of Bachen. According to the records made by Dr. Schomer and Dr. Michael Kondell's comments on those records, Dr. Schomer performed all the tests necessary to properly prescribe soft contact lenses for Bachen as Bachen bad requested. The allegations of Count VI of the Administrative Complaint are not proven.

21. The term "vision analysis" as used in Rule 21Q-3.07, Florida Administrative Code, is not a term of art and is not otherwise defined in the statutes or rules. No testimony was introduced regarding the meaning of the term "Analysis" is defined in Webster's New Collegiate Dictionary, 1975 edition, as the "separation of a whole into its component parts." The various tests enumerated in Rule 21Q-3.07, Florida Administrative Code, would produce data on various aspects of the physical structure of the eye and the neurological or perceptive function of vision.

    
    

22. The rules do not state when a vision analysis must be performed. It is implicit in the Board's case that a vision analysis must be performed in every instance an optometrist fits contact lenses or glasses. This application of the rule has serious implications because it impinges upon the exercise of professional judgment by an optometrist. This interpretation is rejected because of its overbreadth, and the rule is interpreted to require an optometrist to conduct such examinations as are necessary to adequately treat and prescribe for the patient considering the presenting problem, the patient's history, and the prior relationship between the optometrist and patient. The obligation lies upon the Board in each case to demonstrate the manner in which a respondent has failed to properly prescribe and treat a patient by substantial, competent evidence. In this case the Board has proven that the procedures and examination used to fit Edward Leswing with soft contact lenses and glasses were inadequate, but failed to show that the procedures and examination of Steven Bachen were inadequate.

    
    

23. The Bachens lacked the expertise to identify the equipment present in Dr. Schomer's office. Further, Steven Bachen testified that he did not take his glasses off, only a phoropter was used to examine him, and no lights were shone in his eyes during the examination. The records reflect that both keratometric and retinoscopic examinations were performed upon him. Both examinations project light into the eye, and a keratometric examination cannot be performed with a patient's glasses on. The testimony of Steven Bachen's father was similar regarding these matters. The Bachens' testimony is not accepted as reliable regarding the examinations performed on Steven, his glasses being on during the examination by Dr. Schomer, and what equipment was present in Dr. Schomer's office. The allegations of Counts VI, VII and VIII of the Administrative Complaint are not proven.

    
    

24. It is obvious from Edward Leswing's testimony and investigation report that he did not wish to appear suspicious to Dr. Schomer. As a result, his inspection for the equipment present in Dr. Schomer's office was not overt. He did not ask to see what equipment was present but limited his inspection to what was in plain view. Much of the required equipment is small enough to be placed in a drawer or similar container. Dr. Schomer testified that he kept his hand- held equipment in a box similar to a wooden in-and-out box covered with a clipboard to protect them from dust. Based upon Leswing's testimony that he did not see items of equipment, it would be inaccurate to conclude that these items were not present. The allegations of Count IV of the Administrative Complaint are not proven.

    
    

25. Reviewing the counts proven, the Board has proved that Dr. Schomer did not display his license, did not maintain an entry sign, and did not perform all the tests required to prescribe contact lenses and glasses for Edward Leswing. The failure to display a license and to maintain an entry sign are on-going violations. There is no evidence that Dr. Schomer has failed to comply with these provisions on a prior occasion. The failure to properly examine Edward Leswing is a single violation. The Board has proven one technical violation and

one relatively serious substantive violation of the statutes and rules. There is no evidence that Dr. Schomer has repeatedly violated Chapter 463, Florida Statutes, and Chapter 21Q-3, Florida Administrative Code. Count IV of the Administrative Complaint is not proven.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law thee Hearing Officer recommends that Dr. Morton J. Schomer receive a letter of reprimand and be placed on probation for a period of one year, during which time his premises and records will be subject to examination by the Board of Optometry to ensure that he is in compliance with all applicable statutes and rules.

DONE and ORDERED this 1st day of May, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 1st day of May, 1981.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael B. Udell, Esquire

2020 NE 163rd Street, Suite 204 North Miami Beach, Florida 33162

Nancy Kelley Wittenberg, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 80-001739

Orders for Case No: 80-001739