STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4990

)

WILLIAM A. HUNTER, O. D., )

)

Respondent. )

)

RECOMMENDED ORDER

On April 18, 1989, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laura P. Gaffney, Esquire

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

For Respondent: Wilson Jerry Foster, Esquire

227 East Virginia Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether the Respondent, William A. Hunter, O. D., violated Section 463.012 and 463.016, Florida Statutes (1985), by using a prescription over two years old to dispense soft contact lenses; and (2) whether his use of the old prescription to dispense soft contact lenses constituted negligence, incompetency or misconduct in the practice of optometry in violation of Section 463.016(1)(g), Florida Statutes (1985).

PRELIMINARY STATEMENT

This administrative proceeding commenced on February 3, 1987, when the Petitioner, Department of Professional Regulation, filed a three-count Administrative Complaint against the Respondent, William A. Hunter, O. D. The Administrative Complaint charged the Respondent with violations of various regulatory statutes and rules in connection with a patient named Lawrence Stone. As filed, the Administrative Complaint included a charge that the Respondent performed an incomplete examination of the patient on or about July 1, 1982, but at final hearing the Department dropped those charges.

At the conclusion of the final hearing on April 18, 1989, the parties ordered the preparation of a transcript of the hearing, and their request for 14 days from the filing of the transcript to serve proposed recommended orders was granted. The transcript was filed on June 5, 1989, making the proposed recommended orders due to be served on or before June 19, 1989. To enable him to file exceptions, if he deems them necessary, the Respondent's counsel asked that the Recommended Order not be filed until July 31, 1989, and the Department has concurred with this procedure.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 87-4990.

FINDINGS OF FACT

1. At final hearing and at all times pertinent to these Findings of Fact, the Respondent, William A. Hunter, O. D., was licensed by the Board of Optometry to practice optometry in the State of Florida, having been issued License No. OP

595. He is a graduate of the Pennsylvania School of Optometry and has been licensed in Florida since 1958. From 1959 to 1977, he practiced optometry in Merritt Island. In 1977, he moved his practice to Tallahassee and practiced there until January, 1981, when he moved his practice to Tampa, where he has practiced since.

1. On July 1, 1982, the Respondent performed a complete eye examination on the patient, Lawrence Stone, preliminary to fitting the patient with soft contact lenses. As part of the examination, the Respondent measured the refraction of Stone's eyes and measured the curvature of his eyes with a keratometer (revealing an 8.9 base curve.) Both before and after fitting size

   8.9 base curve Amsof Dailywear soft contact lenses, he also examined Stone's eyes with a "slit lamp." 1/

   
   

2. For over three years, Stone wore the soft contact lenses the Respondent prescribed for, and dispensed to, him on July 1, 1982. The contacts caused Stone no apparent difficulty and satisfactorily corrected his severe myopia (five diopters myopic.)

   
   

3. On the morning of Saturday, November 2, 1985, Stone's wedding day, Stone's best man, while washing out coffee cups in the kitchen sink of the place where they were staying, accidentally washed Stone's contact lenses down the garbage disposal. Stone, who is virtully legally blind without corrective lenses, borrowed his best man's eyeglasses and managed to drive himself to the Respondent's place of business in Tampa, arriving there about a half hour before closing time (approximately noon or one in the afternoon on that Saturday.) He explained to the Respondent what he referred to as his "emergency": he was to be married in Hudson, Florida, more than an hour's drive from Tampa, later that afternoon and was leaving directly after the wedding reception for a honeymoon in Mexico; he was virtually legally blind; and he had just lost his only source of corrected vision. He asked the Respondent to replace his soft contact lenses for him. The Respondent, who would have needed three or more days to produce eyeglasses for Stone, cautioned Stone that he really should have a complete eye examination since the lost contact lenses were based on a prescription more than one year old. Stone expressed his preference not to have a complete examination, saying he did not have the time and did not want to spend the money for it. All he wanted the Respondent to do was replace the lost contact lenses. The Respondent agreed to sell them to Stone on the condition that Stone sign a

   release stating that the Respondent had recommended a complete eye examination, rather than using a prescription more than a year old, 2/ and releasing the Respondent from any liability resulting from the use of the old prescription.

   Stone readily signed the release. The Respondent located Stone's July 1, 1982, prescription and examination results, and happened to have in stock the same soft contact lenses he previously had prescribed and dispensed to Stone in 1982. The Respondent sold Stone the replacement lenses and asked Stone to return as soon as he got back from his honeymoon (in about ten days) to have the contacts and his eyes checked.

   
   

4. Wearing the replacement lenses, Stone left the Respondent's place of business, drove to meet his ushers and proceeded with them to the wedding. Within an hour after leaving the Respondent's office, Stone began to experience problems with the contacts. They were curling up and falling out, and he could not see well with them. He took them out during the wedding reception, and his wife drove him to Miami to catch the flight to Mexico. During the honeymoon, Stone wore the contacts only when absolutely necessary.

   
   

5. When Stone got back to Tampa, he returned to the Respondent to complain about the contacts. Based on what the patient told him, the Respondent thought the replacement contacts were defective. Without giving the patient an eye examination, and still relying on the release Stone had signed on November 2, 1985, the Respondent replaced the contact lenses with other lenses of the same brand, type and size. In the office, the new contacts appeared to fit well, and Stone left.

   
   

6. Later, Stone continued to experience difficulties with his contact lenses. He made another appointment to see the Respondent again. The Respondent, who testified that he was out of town when the appointment was made and did not know about it, was not in the office when Stone came in. Stone later called the Respondent, leaving a message for the Respondent to return the call. When the Respondent did not return the call as promptly as Stone thought he should, Stone asked for a credit on the charge card he had used to pay for the replacement lenses on November 2, 1985. When the Respondent was made aware of the request for credit, he contested it, relying on the release Stone had signed. The optometrist-patient relationship deteriorated from there, and Stone never returned to the Respondent for further services. Eventually, the Respondent reimbursed to Stone what he had been charged.

   
   

7. The Respondent's failure to perform a complete eye examination on the patient Stone on November 2, 1985, was not negligent or incompetent under the circumstances. It was negligent, however, for the Respondent to rely on a prescription that was over three years old and on the November 2, 1985, release instead of insisting on examining the patient when Stone returned about ten days later with complaints about the contact lenses. The evidence did not prove that the Respondent was incompetent.

   
   

8. Ironically, on or about July 23, 1985, the Respondent had asked for and, by Final Order entered on November 5, 1985, had received, a declaratory statement from the Board of Optometry on the question whether F.A.C. Rule 21Q- 3.07, prescribing the minimum requirements for a "vision analysis," applies to a "follow-up eye examination" when a patient requests an adjustment or correction for eye glasses and contact lenses. The Board's Final Order declares that the "follow-up eye examination" the Respondent described was not a "vision analysis" and that F.A.C. Rule 21Q-3.07 did not apply. The Board cautioned the Respondent to use "good optometric judgment to determine what further tests, if any, may be necessary... [I]t could be that the optometrist would need to repeat the entire

   minimum examination and more, dependent upon the totality of the circumstances." Final Order, In Re: Petition for Declaratory Statement of Hunter, Case No. 85- OPT-I, declaratory statement entered November 5, 1985. (Respondent's Exhibit 1).

   
   

9. By Final Order, Dept. of Prof. Reg. v. Hunter, DOAH Case No. 82-112 (Bd. of Optometry, November 23, 1983), the Board of Optometry found the Respondent guilty of failing to meet the standard of care of his professional community in the case of two patients in that he failed to give them proper notice that he was moving his optometry practice from Tallahassee to Tampa and failed to make proper arrangements for follow-up care for those patients after prescribing and dispensing soft contact lenses for them. In lieu of the $1,000 fine and six month probation recommended by the Hearing Officer in that case, the Board approved the stipulation of the parties made orally before the Board that the Respondent: (1) divest himself of all interest in the optical business of which he was a partner; (2) pay a $2,000 fine; (3) reimburse to the patients involved the cost of his services and the follow-up and related services of others necessitated by the Respondent's departure for Tampa; and (4) serve a three year probation "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."

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 463.016(1)(g) and (h) and (2), Florida Statutes (1985), authorizes the Board of Optometry to revoke or suspend a license, impose an administrative fine not to exceed $1,000 for each count or separate offense, issue a reprimand and place a licensee on probation for negligence, incompetency or misconduct in the practice of optometry or for any violation or repeated violations of provisions of either Chapter 463 or Chapter 455 of the Florida Statutes or any rules promulgated under those statutes.

    
    

11. Section 463.012, Florida Statutes (1985), provides:

    
    

    1. A licensed optometrist shall keep on file for a period of at least 2 years any prescription he writes.

    2. An optometrist shall, upon request by a patient or his agent, make available a duplicate copy of any original prescription less than 2 years old. Any duplicate prescription shall be considered a valid

       prescription to be filled for a period of 2 years from the date of the original prescription.

       
       

12. Section 463.012, Florida Statutes (1985), must be strictly construed, and no conduct is to be regarded as included within it that is not reasonably proscribed by it. If there are any ambiguities in the statute, it must be contrued in favor of the licensee. See Lester v. Dept. of Prof. and Occ. Reg.,

    348 So.2d 923, 925 (Fla. 1st DCA 1977). On its face, the statute appears to be intended: (1) to prohibit an optometrist from refusing to give a patient a duplicate of a prescription to have filled elsewhere at any time within two years of the original prescription; and (2) to confirm the validity of the duplicate prescription for filling elsewhere within two years of the original prescription. It does not appear to be intended to require an optometrist, in every case, to repeat a complete eye examination on one of his or her own

    patients every two years. Whether a repeat complete eye examination is required is a decision for the optometrist to make in the exercise of his discretion "dependent upon the totality of the circumstances." See Finding 9., above. See also In Re: Petition for Declaratory Statement of Gillette, 10 F.A.L.R. 6596 (Bd. of Optometry 1988). The Respondent's dispensation of soft contact lenses to the patient Stone on November 2, 1985, is not a violation of Section 463.012 and Section 463.016(1)(h), Florida Statutes (1985).

    
    

13. As found, under the circumstances, it was not negligence under Section 463.016(1)(g), Florida Statutes (1985), for the Respondent to dispense soft contact lenses to the patient Stone on November 2, 1985. However, it was negligent for the Respondent to rely on the July 1, 1982, examination and prescription and on the November 2, 1985, release instead of insisting on a complete eye examination when Stone returned ten days later with complaints of difficulties. This negligence did not sink to the level of "incompetence" and should not be construed as "misconduct" under the statute.

    
    

14. Although the Respondent was on probation from November 23, 1983, through November 23, 1986, and the probation conditions provided for revocation for proven violations during the probation period, the Respondent's license cannot be revoked for a probation violation because the Administrative Complaint does not charge the Respondent with a probation violation. (The Department did not propose revocation in its proposed recommended order.)

    
    

15. Under F.A.C. Rules 21Q-15.002 and 21Q-15.006, the Respondent's negligence in this case was a major patient care violation. Under F.A.C. Rule 21Q-15.004 since this is the Respondent's second offense, the range of penalties is: an administrative fine of not less than $2,000 nor more than $5,000 per count or offense and, if appropriate, a period of suspension of not less than 12 months nor more than 24 months. Aggravating and mitigating factors for varying from the penalty range are set out in F.A.C. Rule 21Q-15.007.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Optometry enter a final order finding the Respondent guilty of one count of negligence, suspending the Respondent's license for 30 days, and imposing on the Respondent a $2,000 administrative fine.

RECOMMENDED this 2nd day of August, 1989 Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1989.

ENDNOTES

1/ It appears that the Department's investigation led it and its expert witnesses at final hearing to believe that the July 1, 1982, examination was for eye glasses only and did not include keratometer readings or the use of the "slit lamp." It is not clear how this misapprehension of the facts occurred.

2/ Actually, there was little danger of serious or permanent damage to the patient's eyes.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4990

To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated.

1. It was approximately ten days later. Otherwise, accepted and incorporated.

2. Accepted and incorporated.

3. Rejected. The evidence, taken as a whole, did not prove that the Respondent was negligent or guilty of misconduct under the totality of the circumstances on November 2, 1985. The Respondent's negligence became apparent, however, when the patient Stone returned with complaints about ten days later.

4. Rejected. The first sentence may be true as a general proposition but not under the circumstances with which the Respondent was faced on November 2, 1985. The second sentence is contrary to facts found and the greater weight of the evidence. Based on the evidence, there was little risk of serious injury to the patient's eyes in this case.

Respondent's Proposed Findings of Fact.

1.-5. Accepted and incorporated to the extent necessary.

1. Accepted. First, sentence incorporated; rest, subordinate to facts found.

2. Stone began having difficulties within less than an hour, within as little as 20 minutes. Otherwise, accepted and incorporated to the extent necessary and not subordinate.

3. Accepted and incorporated.

4. Last two sentences, accepted and incorporated. First two sentences, rejected as cumulative. The rest, rejected as argument.

10.-11. Accepted. Subordinate in part to facts found and in part to facts contrary to those found.

12. Accepted to a point and incorporated. But the Respondent's negligence became apparent when Stone returned with complaints about ten days later.

COPIES FURNISHED:

Laura P. Gaffney, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Wilson Jerry Foster, Esquire

227 East Virginia Street Tallahassee, Florida 32301

Pat Guilford Executive Director Board of Optometry

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0729

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 87-004990

Orders for Case No: 87-004990