Judges: D. R. ALEXANDER
Agency: Department of Health
Latest Update: Mar. 23, 1989
Summary: Optometrist found guilty of violating foregoing statutes and rules.
88-5278STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
OPTOMETRY )
)
Petitioner, )
vs. ) CASE NO. 88-5278
) MARK L. KLUGMAN, O. D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 7, 1989, in Tampa, Florida.
APPEARANCES
For Petitioner: Laura P. Gaffney, Esquire
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Mark L. Klugman, pro se
3611-49th Street North
St. Petersburg, Florida 33710 BACKGROUND
By administrative complaint filed on September 21, 1988, petitioner, Department of Professional Regulation, Board of Optometry, has charged that respondent, Mark L. Klugman, a licensed optometrist, had violated various provisions within Subsection 463.016(1), Florida Statutes (1987) and a Department rule when he rendered services to a patient between August and October 1987. Thereafter, respondent requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's action. The matter was referred to the Division of Administrative Hearings by petitioner on October 28, 1988, with a request that a hearing officer be assigned to conduct a hearing.
By notice of hearing dated December 13, 1988, a final hearing was scheduled on February 7, 1989, in St. Petersburg, Florida. Venue was later changed to Tampa, Florida. On January 4, 1989, the case was transferred from Hearing Officer Diane D. Tremor to the undersigned.
At final hearing petitioner presented the testimony of Judith A. Leff, a DPR investigator, Dr. John R. Walesby, an optometrist and accepted as an expert in optometry, and Sandra Jean Dinkins, the patient. Also, the agency offered petitioner's exhibits 1 and 2. Both exhibits were received into evidence.
Respondent testified in his own behalf, called Dr. Walesby as a witness and offered respondent's composite exhibit 1. The exhibit was received in evidence.
The transcript of hearing was filed on March 8, 1989. Proposed findings of fact and conclusions of law were filed by petitioner on March 20, 1989. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.
The issue is whether respondent's optometrist license should be disciplined for the reasons set forth in the administrative complaint.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida.
On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida.
After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges.
According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return.
Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem.
After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably
improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community.
By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1.
While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule.
Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
Since respondent's professional license is at risk, the agency must prove the alleged violations by clear and convincing evidence. Lewis v. State Department of Professional Regulation, Division of Real Estate, 529 So.2d 751 (Fla. 3rd DCA 1988).
The complaint alleges that respondent (a) is guilty of incompetence or misconduct in the practice of optometry as proscribed by subsection 463.016(1)(g) (Count I), (b) violated subsection 463.016(1)(n) by exhibiting gross or repeated malpractice (Count II), and (c) violated a provision within chapter 463 or a Board rule in contravention of subsection 463.016(1)(h) (Count III). The Board rule in question is Rule 21Q-3.007(1), Florida Administrative Code (1987).
By clear and convincing evidence the Board has established, through the expert testimony of witness Walesby, that respondent is guilty of incompetence by making an erroneous prescription for patient Dinkins and not correcting the same despite six office visits. Thus, he has violated subsection 463.016(1)(g).
As to Count II, the evidence is less than clear and convincing that respondent is guilty of gross malpractice. Indeed, the Board's own expert characterized respondent's performance as failing to meet the minimum community standards but offered no opinion as to whether Dr. Klugman's conduct equated to gross malpractice. Therefore, Count II must fail.
Count III rests upon the premise that respondent violated Rule 21Q- 3.007(1), Florida Administrative Code (1987) which in turn constitutes a violation of subsection 463.016(1)(h). The record reflects that Dr. Klugman violated the cited rule by failing to perform and record on Dinkins' patient case record the following required family medical history, family ocular history and visual field testing. Therefore, the charge has been sustained.
Chapter 21Q-15, Florida Administrative Code (1987) contains a veritable maze of guidelines for imposing penalties upon a licensee. Violations are classified as minor and major administrative violations and minor and major patient care violations. In addition, aggravating and mitigating factors must be taken into account. Since Dr. Klugman's violations involve the treatment of a patient, they must be classified within the patient care category. There was no testimony at hearing to establish whether these violations were minor or major. Even so, a major patient care violation is defined in rule 21Q-15.002(4) as "a violation of Chapter 455, 463, or applicable sections of 465 or 499, (F.S.), or the applicable rules promulgated, which involves the diagnosis or treatment of a patient and which directly endangers the public health, safety and welfare of the citizens of Florida." Since Dr. Klugman's erroneous prescription potentially affected the health of his patient, it must be classified as major. Therefore, the violation of subsection 463.016(1)(g) calls for a penalty ranging from an administrative fine of not less than $1,000 nor more than $2,500 per offense and a period of probation of not less than 12 months not more than 18 months. See Rule 21Q-15.004(2)(a), F.A.C. (1987). The remaining violations must be classified as minor patient violations under rule 21Q-15.006(1)(b) and call for a penalty of an administrative fine of not less than $750 nor more than $2500 per count and, if appropriate, a period of probation of not less than 6 months nor more than 12 months. See Rule 21Q- 15.004(1)(a), F.A.C. (1987). In mitigation, it was established that respondent expended a considerable amount of time and effort in attempting to resolve the patient's problems. Also, there was no evidence that respondent has ever been disciplined by the Board.
Based on the above guidelines, Dr. Klugman should be fined $1,000, and his license should be placed on probation for twelve months under such conditions as the Board may deem appropriate.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections
463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that
his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed.
DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1989.
APPENDIX
Petitioner:
Covered in finding of fact 1.
Covered in finding of fact 2.
Covered in finding of fact 6.
Covered in finding of fact 4.
Covered in finding of fact 3.
Covered in finding of fact 5.
7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence.
Covered in finding of fact 9.
Rejected as unnecessary.
COPIES FURNISHED:
Laura P. Gaffney, Esquire
130 North Monroe Street Tallahassee, Florida 32399-0750
Mark L. Klugman, O.D. 3611-49th Street North
St. Petersburg, Florida 33710
Pat Guilford Executive Director Board of Optometry
130 North Monroe Street Tallahassee, Florida 32399-0750
Kenneth E. Easley, Esquire
130 North Monroe Street Tallahassee, Florida 32399-0750
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF OPTOMETRY
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY,
Petitioner,
vs. DOAH CASE NO. 88-5278
MARK L. KLUGMAN, O.D.,
Respondent.
/
FINAL ORDER
This matter came before the Board of Optometry (hereinafter referred to as the "Board") for final action pursuant to subsection 120.57(1)(b)9, Florida Statutes, at a public meeting held on May 11, 1989, in Bal Harbor, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. A transcript of the proceeding is available, if necessary.
FINDINGS OF FACT
The Board, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the Findings of Fact of the Hearing Officer. (Recommended Order attached as Appendix A)
CONCLUSIONS OF LAW
The Board having received the Recommended Conclusions of Law adopts and incorporates by reference the Hearing Officer's Conclusions of Law 1-7. The Board having also reviewed the complete record, hereby rejects the Hearing Officer's Conclusion of Law 8 as being a recommendation of penalty rather than a Conclusion of Law. In its place the Board adopts the following Conclusion of Law:
8. The Board specifically concludes that aggravating circumstances are established by the record in this case. Upon its review of the complete record, the Board concludes that the patient records contained in the record of the case indicate that Dr. Klugman attempted to fit contact lenses without first taking an appropriate keratometer reading. This practice is particularly dangerous to Dr. Klugman's patients.
PENALTY
The Board, based upon the foregoing Findings of Fact and Conclusions of Law, and its particular expertise in the field of optometry, specifically
rejects the Hearing Officer's recommended penalty in this case and instead adopts the following penalty in this matter:
The Respondent, Dr. Klugman, is hereby found to have violated Subsection 463.016(1)(g), Florida Statutes; and Subsection 463.016(1)(h), Florida Statutes, by having violated Rule 21Q-3.007, Florida Administrative Code. Dr. Klugman shall be fined $1,500.00 and his license will be placed on probation for a period of twelve months, during which time he shall complete six hours of continuing education regarding contact lens fitting and follow-up care. Said continuing education shall be in addition to those hours required of Dr. Klugman for biennial renewal of his license.
THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
That the license of Mark L. Klugman, O.D. shall be disciplined and he shall be required to pay within 30 days of the effective date of this Order an administrative fine in the amount of $1,500.00 and Dr. Klugman's license shall be placed on probation for a period of twelve months, during which time Dr.
Klugman shall be required to complete six hours of continuing education in the area of contact lens fitting and follow-up care. Said continuing education shall be in addition to that required for biennial renewal of his license.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
This Final Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 22nd day of June, 1989.
BOARD OF OPTOMETRY
WILLARD C. PEARCE, JR., O.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to Mark L. Klugman, O.D., 3611-49th Street North, St.
Petersburg, Florida 33710, and by Hand Delivery to Charles Tunnicliff, Chief Attorney, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 by U.S. Mail on or before 5:00 p.m., this 30th day of June, 1989.
Docket for Case No: 88-005278
Orders for Case No: 88-005278
