STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD OF ) OPTOMETRY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-112
)
WILLIAM A. HUNTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above-styled matter, before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on January 17, 1983, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Joseph W. Lawrence, II
Chief Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: William F. Daniels, Esquire
127 East Park Avenue Post Office Box 12
Tallahassee, Florida 32302 INTRODUCTION AND BACKGROUND
By a First Amended Administrative Complaint dated October 26, 1982, the Respondent was charged with multiple violations of Chapter 463 of the Florida Statutes. Specifically, Respondent was charged with negligence in the treatment of four optometric patients: Wendell Harrison, Maureen Woodward, Barbara Magnusson Stathos and Marianne Topjian. By such neglegent treatment it was alleged that Respondent had violated the specific provisions of Rule 21Q-3.07, Florida Administrative Code, and Sections 463.016(1)(g), (h), (m), and (n), Florida Statutes. It was further alleged that upon his relocation to Tampa, Florida, the Respondent failed to give due notice to the four patients mentioned above, and, therefore, violated Rule 21Q-3.02, Florida Administrative Code, and Section 463.016 (1)(h), Florida Statutes. Lastly, Respondent was charged with advertising the prices of goods and services in a false, deceptive, and misleading manner, in violation of Section 463.016(1)(f), Florida Statutes, and Rule 21Q-3.09, Florida Administrative Code, which is also a violation of Section 463.016(1)(h)
At the formal hearing, the Petitioner called as witnesses Wendell Douglas Harrison, Maureen Sue Woodward, and Walter Hathaway, a licensed optometrist. In addition to these witnesses, the testimony of the Respondent and of Dr. Ian Field, a licensed optometrist, was presented by way of deposition through Petitioner's Exhibits 1 and 2, respectively. The Respondent testified on his own behalf. In addition to Exhibits l and 2, the Petitioner also offered and had admitted two other exhibits. The Respondent offered and had admitted one exhibit which was subsequently withdrawn. At the time that the deposition of Dr. Ian Field was offered, Mr. Daniels, counsel for Respondent, objected to the admissibility of a portion of page 19 and pages 20 through the end of the deposition of Dr. Ian Field. The grounds for these objections were that Dr.
Field was asked questions regarding the standard of care of optometrists in the Tallahassee community and that Dr. Field had not first testified that he knew the standard of care in the Tallahassee community. This objection was taken under advisement and has been overruled. The deposition of Dr. Ian Field was, therefore, admitted in its entirety and is a part of the record in this matter.
Both counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered by the Hearing Officer and determined to be irrelevant to the issues of this cause or not supported by the evidence.
FINDINGS OF FACT
At all times material to this proceeding, Respondent was and remains a licensed optometrist in the State of Florida, having been issued License No. 000595. Respondent's present address is 4636 North Dale Mabry, #619, Tampa, Florida 33614.
The Respondent, prior to relocating his office to Tampa, Florida, practiced optometry in Tallahassee, Florida, in an office adjacent to the Pearle Vision Center in the Governor's Square Mall. He closed that office the last week of December, 1980.
Treatment of Wendell Harrison
The Respondent first saw Wendell Harrison on October 11, 1980. At that time, Respondent was offering a special of $59.00 for three visits which included an examination and prescription, contact lenses, and the fitting of those lenses.
The first of the three visits was the initial examination and prescription. The second visit occurred after the patients received their lenses, and the third visit was a follow-up visit for the purpose of ensuring that the lenses were fitted properly and there were no problems.
On October 11, 1980, Mr. Harrison was examined by Dr. Hunter and given a prescription for contact lenses. On that date, Mr. Harrison paid the Respondent $40.00 of the $59.00 total charge.
On October 22, 1980, Mr. Harrison received his contact lenses and returned to the Respondent's office for his second visit. During that visit, he was shown how to insert the lenses and also saw a film on how to care for the lenses. At this time, he paid the $19.00 balance of the total charge of $59.00.
Subsequent to the second visit, Mr. Harrison experienced blurred vision and pain, especially in his left eye. He returned to Dr. Hunter and informed him of the blurred vision and pain. Dr. Hunter made no examination of Mr. Harrison's eyes or the lenses and informed him the lenses would tighten up and that he should continue to wear them. Mr. Harrison continued to have problems and returned to Dr. Hunter's office the first week of January, 1981. The office was closed.
Mr. Harrison did not recall seeing a sign in the window or door of the closed office, but was informed by someone employed at the Pearle Vision Center next door that Dr. Hunter had left and that a Dr. Ian Field was handling problems with Dr. Hunter's patients. Mr. Harrison then made an appointment to see Dr. Field.
After an examination, Dr. Field told Mr. Harrison not to put the lenses back into his eyes and not to use them. Dr. Field wrote a prescription for new lenses and refitted Mr. Harrison with the new lenses. Mr. Harrison experienced only minor problems in getting used to the new lenses and had no problem with blurred vision with the new lenses.
The prescription of the lenses prescribed for Wendell Harrison by Dr. Hunter was improper in that the lenses corrected the vision in his right eye to only 20/40 which is the minimum for driving a vehicle in Florida. The left eye was corrected only to 20/40 and three additional letters on the next line of the chart. The lenses were also improperly fitted to Mr. Harrison's eyes, and as a result, moved around too much and would ride up underneath the upper lids of his eyes.
By letter dated February 3, 1981 (see Petitioner's Exhibit 3), Mr. Harrison contacted Dr. Hunter and requested a full refund of his $59.00 fee. Dr. Hunter responded by letter dated February 9, 1981 (see Petitioner's Exhibit
4) and refunded with that letter $9.00 of the $59.00 paid by Mr. Harrison.
Treatment of Maureen Sue Woodward
Sometime in the Fall of 1980, Maureen Sue Woodward visited the office of the Respondent in Governor's Square Mall for the purpose of an examination and fitting of contact lenses. On the first visit, Ms. Woodward was examined by Dr. Hunter and was given a prescription for contact lenses. She took the prescription next door to Pearle Vision Center to have the prescription filled.
Ms. Woodward, on the first visit, was quoted a price of $75.00 for three visits and this is the amount she paid Dr. Hunter. The three visits were to consist of first, an examination and prescription, secondly, the actual insertion and instruction on care of the lenses, and lastly, a follow-up visit to make certain there were no problems.
After she received her contact lenses, she returned to Dr. Hunter's office for instruction on how to insert them and care for them. She watched a film about the cleaning of the lenses. Following the second visit, she wore the contacts just as she had been instructed to wear them and began to experience problems. Her eyes were bloodshot, burning, and tearing as a result of the contact lenses.
Ms. Woodward returned to Dr. Hunter's office a third time and explained the problems she was experiencing. Dr. Hunter performed no examination of her eyes or the lenses but told her she was not cleaning them
properly. She returned home and continued to clean the lenses as prescribed in the written instructions she had been given by Dr. Hunter and continued to have the same problems of bloodshot eyes, tearing, and burning. Dr. Hunter had told her to come back if she had any further problems.
When she returned to Dr. Hunter's office in early January, 1981, the office was closed and there was a note on the door of the closed office referring patients to Dr. Ian Field in the Tallahassee Mall. Her third visit with Dr. Hunter had been approximately a week earlier and he had not mentioned the possibility that he might be leaving Tallahassee. The only information given by the note on the door was that Dr. Hunter's patients were referred to Dr. Field. On January 7, 1981, Mrs. Woodward was seen by Dr. Ian Field.
The contact lenses which had been prescribed by the Respondent had an improper prescription. Prescriptions for contact lenses are in plus or minus. A prescription at zero has no prescription at all and is clear glass. A nearsighted person needs something for distance and requires a minus prescription and a farsighted person requires a plus prescription. The power of both lenses prescribed by Dr. Hunter for Mrs. Woodward were more plus than they should have been.
When Mrs. Woodward saw Dr. Field on January 7, 1981, she was continuing to wear the contacts prescribed by Dr. Hunter. She was also experiencing blurred vision and bloodshot eyes. Her right eye felt scratchy.
Treatment of Barbara Magnusson Stathos
The Respondent examined Barbara Magnusson Stathos and prescribed contact lenses sometime prior to September 29, 1980. The agreed fee was $59.00 for three visits and Ms. Stathos had her second visit with Dr. Hunter on September 29, 1980, after picking up her contacts.
After receiving her contacts Ms. Stathos experienced problems and called Dr. Hunter's office. She spoke with Dr. Hunter at that time. She continued to have problems and when she returned to Dr. Hunter's office, he had left the area.
Barbara Stathos was then seen as a patient by Dr. Walter Hathaway, an optometrist, on January l7,1981. She was using a liquid chemical method of disinfectant for the lenses Dr. Hunter had prescribed for her. Thirty to forty percent of the population has an allergic reaction to these particular chemical disinfectants. There were deposits and coatings on the lenses which had been prescribed for Barbara Stathos by Dr. Hunter. Dr. Hathaway replaced her lenses and switched her to a heat disinfectant method. This solved her problem.
The problem of coatings and deposits on her lenses would not have corrected itself. Such a condition would have required an optometrist to correct it.
Treatment of Marianne Topjian
On December l2, 1980, Marianne Topjian was given a prescription by Dr. Hunter for contact lenses. Subsequent to December 12, 1980, she received her contact lenses.
On January 8, 1981, Marianne Topjian saw Dr. Ian Field. She was having problems with the contact lenses prescribed by Dr. Hunter. These lenses
had an improper prescription in that they did not correct her vision for close work. The lenses should correct for distance as well as close work.
Standard of Care and Requirement for Due Notice
The standard of care for optometrists in the Tallahassee community in 1980 and 1981 required proper follow- up care in order to ensure that contact lenses fit properly, that the prescription was proper, and that the patient was not experiencing any problems requiring correction by the optometrist. The follow-up care includes necessary examinations to determine the source of any problems being experienced by the patient. Some degree of follow-up care is required with every patient who is fitted with contact lenses by an optometrist.
The standard of care in the Tallahassee community, as well as the nation, requires that when a physician leaves his practice and relocates to another community, he must give notice to his patients and make certain that patients under his active care are taken care of by another optometrist. The relocating optometrist must also make arrangements to make the records of his patients available to them.
Neither Wendell Harrison nor Maureen Woodward were given notice by the Respondent that he was leaving Tallahassee and relocating elsewhere.
Wendell Harrison and Maureen Woodward were under his active care at the time Dr. Hunter left Tallahassee, and no proper arrangements were made by Dr. Hunter for the follow-up care for the problems that these two persons had complained about. Dr. Hunter saw Maureen Woodward approximately one week prior to his departure, and he did not inform her that he was considering leaving Tallahassee.
Prior to leaving Tallahassee, the only arrangements made by Dr. Hunter involved one phone call with a Dr. Orb who planned to move into Dr. Hunter's office in Governor's Square Mall. Dr. Orb agreed generally to take care of any of Dr. Hunter's patients, but no specific financial arrangement was made for such treatment and no specific patients experiencing current problems were discussed. Dr. Hunter did not know when Dr. Orb would be moving into the office, and there was no evidence that he called Dr. Orb in Tallahassee after his departure to determine if Dr. Orb was, in fact, caring for his patients. No arrangement at all had been made with Dr. Ian Field.
The Respondent was negligent and fell below the standard of care in the community by failing to provide proper follow-up care to Wendell Harrison. The Respondent specifically failed to examine Mr. Harrison and take appropriate steps to determine the cause of the blurred vision and discomfort complained of by Mr. Harrison on his third visit Having been made aware by an active patient that the patient was having ongoing continuous problems with the new contacts, the Respondent failed to make arrangements upon his departure from Tallahassee to ensure that Mr. Harrison would receive the necessary care to correct his problems, if they continued. As a result of failing to provide proper follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Mr. Harrison.
The Respondent was negligent and fell below the standard of care in the community in his treatment of Maureen Sue Woodward by failing to provide her with proper follow-up care after she was fitted with contact lenses by the Respondent. After Maureen Woodward complained of bloodshot eyes, burning and tearing, the Respondent did not perform an examination of her eyes or contact
lenses in order to determine the cause of these problems. Having been made aware of these problems, he did not make proper arrangements upon his departure from Tallahassee to ensure that Ms. Woodward would receive the necessary follow- up care to correct these problems in the event that the problems continued. By failing to perform the appropriate examinations and to provide the appropriate follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Maureen Woodward.
There was insufficient evidence to show that the Respondent breached any standard of care in the community with regard to his treatment of Marianne Topjian and Barbara Magnusson Stathos. Neither of these patients testified in the administrative proceedings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Florida Statute 463.016(2)(1981) empowers the Board of Optometry to discipline licensed optometrists in Florida upon any of the grounds set forth in Section 463.016(1).
Florida Statute 463.016(1) provides in relevant part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
Fraud, deceit, negligence or incompetency, or misconduct in the practice of optometry.
A -violation or repeated violations of provisions of this chapter, or of chapter 455, and any rules promulgated pursuant thereto.
Rule 21Q-3.02, Florida Administrative Code, provides:
An optometrist shall give due notice to the patient when he withdraws his services so that the patient may make other arrangements for his care. A violation of this rule also constitutes a violation of Florida Statute 463.016(1)(h)(1981).
By failing to provide proper follow-up care to Wendell Harrison as described in paragraphs 3 through 11 above, the Respondent was negligent, and, therefore, violated Section 463.016(3)(g), Florida Statutes. Respondent is, therefore, guilty of the violation charged in Count Six of the First Amended Administrative Complaint.
By failing to give due notice to Wendell Harrison, the Respondent has violated Rule 21Q-3.02, Florida Administrative Code, and Florida Statute 463.016(1)(h) and is, therefore, guilty of the violation charged in Count Eight of the First Amended Administrative Complaint.
By failing to provide proper follow-up care to Maureen Sue Woodward as described in paragraphs 12 through 18 above, the Respondent was negligent, and, therefore; violated Section 463.016(1)(g), Florida Statutes. Respondent is,
therefore, guilty of the violation charged in Count Nine of the First Amended Administrative Complaint.
By failing to give due notice to Maureen Sue Woodward, the Respondent has violated Rule 21A-3.02, Florida Administrative Code, and Florida Statute 463.016(1)(h), and, therefore, is guilty of the violation charged in Count Eleven of the First Amended Administrative Complaint.
The evidence was insufficient to establish the violations charged in Counts 1 through 5, 7, 10, and 12 through 16. These counts should, therefore, be dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Respondent be found guilty of Counts 6, 8, 9, and 11 of the First Amended Administrative Complaint and that he be required to pay an administrative fine of $1,000.
It is further recommended that the Respondent be placed on probation for a period of six (6) months subject to such conditions as the Board deems appropriate to ensure that the Respondent is completely familiar with and follows the requirements for proper follow-up care with patients being fitted with contact lenses. It is recommended that Counts 1 through 5, 7, 10, and 12 through 16 of the Administrative Complaint be dismissed.
DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida.
MARVIN E. CHAVIS
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983.
COPIES FURNISHED:
Joseph W. Lawrence, II, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
William F. Daniels, Esquire
127 East Park Avenue Tallahassee, Florida 32302
Ms. Mildred Gardner Executive Director Board of Optometry
130 North Monroe Street Tallahassee, Florida 32301
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 82-0112
WILLIAM A. HUNTER, O.D.,
Respondent.
/
FINAL ORDER
Pursuant to notice, this cause came before the Board of Optometry on July 29, 1983 in Miami, Florida for consideration of the Findings of Fact and Conclusions of Law contained in the Recommended Order issued May 25, 1983 by hearing officer Marvin E. Chavis and on September 10, 1983 in Tallahassee, Florida for consideration of the recommended penalty contained in the Recommended Order of May 25, 1983. Upon consideration of the Recommended Order, the exceptions filed thereto the record and the arguments of counsel, the Board hereby finds and concludes as follows:
That the Findings of Fact and Conclusions of Law as
set forth in the Recommended Order are adopted in toto.
That the recommendation of penalty of $l,000.fine and six months suspension contained in the Recommended Order be amended in accordance with oral stipulations of the parties on September 10, 1983 and consideration by the Board as follows:
Respondent shall divest any and all of his interest in Zodiac Optical (or its successor) including, but not limited to, selling of any stock, disconnecting of any connecting telephone or intercom systems, and discontinuing of any agreements regarding specific charges for eye examinations. The Respondent shall not be precluded, however, from providing professional services to patients referred to him by any person or entity, including Zodiac Optical. In addition, the Board acknowledges that the Respondent has no control over Zodiac Optical's advertising of specific charges for eye examinations. However, the Respondent shall not participate in or encourage such advertisements on the part of Zodiac Optical nor shall he permit Zodiac Optical to advertise specific charges for eye examinations for patients which Zodiac Optical may choose to refer to him.
The Respondent shall pay an administrative fine in the amount of Two Thousand Dollars ($2,000.00) to the Department of professional Regulation within thirty (30) days within rendition of this Final Order. In addition, the Respondent shall make reasonable, good faith efforts to reimburse patient Wendell Harrison for the cost of the new examination, prescription, and the cost of the lenses necessary to replace those purchased by Mr. Harrison from the Respondent on October 22, 1980. Further, the Respondent shall make reasonable, good faith efforts to locate patient Maureen Sue Woodward and reimburse her for the costs of the necessary eye examination and bifocal glasses which were necessary to replace the contact lenses purchased by Ms. Woodward from the Respondent in September of 1980. Further, the Respondent shall fully reimburse to both these patients any monies paid to him by them for the aforementioned examinations and contact lenses which have not been refunded to date;
Respondent shall be on probation for a period of three (3) years during which time a proven violation of Chapters 455, 463 or the rules promulgated thereunder shall result in revocation of his license, unless the Board at that time determines otherwise;
Respondent shall practice during his three year probationary period under the supervision of Jack Hargrave, DO. who shall submit quarterly reports to the Board concerning Respondent's practice. This supervision shall be occasional
rather than constant, but shall be overall supervision of Respondent's practice. There is no requirement that Dr. Hargrave be on the premises in order for Respondent to practice;
The first quarterly report by Dr. Hargrave shall report on the severance of Respondent from Zodiac Optical (or its successor) and the reimbursement to patients Harrison and Woodward as set forth in subparagraph b) above. The Respondent shall not be penalized by this Board if, despite his reasonable, good faith efforts to contact and/or reimburse these patients, he is unable to do so. However, the Respondent shall submit documentation to the Board through Dr. Hargrave's first quarterly report of the monies paid to these patients or, if these patients have not been reimbursed, of his reasonable good faith efforts to contact these individuals.
Respondent shall obtain 36 hours education by the close of the next renewal period (December 31, 1984). These 36 hours shall be in addition to the hours required for license renewal and shall be in the area of contact lens pre scriptions. Documentation showing that the Respondent has completed 16 hours of said continuing education must be provided to the Board no later than December 3l, 1983. Further, documentation that the Respondent completed eight hours of said continuing education must be submitted to the Board no later than November 30th, 1983. Documentation must also be
provied to the Board no later than February 28, 1984 that Respondent has completed an additional
8 hours of the aforementioned 36 required hours of continuing education.
DONE and ORDERED this 14th day of November 1983.
BOARD OF OPTOMETRY
By: Dr. Frank Altieri, O.D.
cc: Joseph W. Lawrence, II, Esquire Deborah J. Miller, Esquire.
| Issue Date | Proceedings |
|---|---|
| Oct. 23, 1990 | Final Order filed. |
| May 25, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 14, 1983 | Agency Final Order | |
| May 25, 1983 | Recommended Order | Recommend fine and suspension for Respondent who was negligent and didn't arrange proper follow-up visits. |
