STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF ) PROFESSIONAL REGULATION, ) BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1547

)

RUSSELL J. RAYE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 10, 1991, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Laura P. Gaffney, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida

For Respondent: Russel J. Raye, O.D., pro se

1101 West Broward Boulevard Fort Lauderdale, Florida

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent violated Chapter 463, Florida Statutes, by committing the acts alleged in the administrative complaint and, if so, what disciplinary action, if any, should be taken against Respondent's license.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on December 14, 1989. Respondent requested a formal hearing by letter dated February 19, 1991. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on March 8, 1991, and assigned to the undersigned on March 12, 1991. A formal hearing was scheduled for July 10, 1991, pursuant to a Notice of Hearing issued on March 27, 1991.

At the formal hearing, Petitioner presented the testimony of: S.R., the complaining witness; Ms. Bonnie Phipps, Petitioner's investigator; and Dr.

Ronald P. Snyder, a licensed optometrist in the state. Dr. Snyder was accepted as an expert witness. Petitioner submitted three exhibits for admission in

evidence. Petitioner's Exhibits 1-3 were admitted in evidence without objection. 1/

Respondent testified in his own behalf and submitted one exhibit for admission in evidence. Respondent's Exhibit 1 was admitted in evidence without objection. 2/

A transcript of the formal hearing was requested by Petitioner and filed with the undersigned on August 1, 1991. Proposed findings of fact and conclusions of law were originally due from the parties on August 12, 1991.

Petitioner's proposed findings of fact and conclusions of law were timely filed on August 9, 1991. Respondent's proposed findings of fact and conclusions of law were timely filed on August 12, 1991. The parties' proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed optometrist in the state, holding license number OP 1513.

   
   

   Background

   
   

2. Respondent performed optometry examinations on patient S.R. on September 12, 1988, and on September 22, 1988. The examinations were performed at Linsey Eyecare, 2021 Palm Beach Lakes Boulevard, West Palm Beach, Florida. Respondent is a subcontractor for Dr. Steven Venokour who manages Linsey Eyecare.

   
   

3. Linsey Eyecare advertises that it is a ". . . department store that . .

   . " fills ". . . 90% of most prescriptions . . . in about one hour. . ." and offers ". . . a complete and comprehensive visual diagnosis . . ." in which ". .

   . your eyes are screened for glaucoma." S.R. went to Linsey Eyecare because she saw its advertisement in the local newspaper.

   
   

4. Respondent knew that S.R. had a family history of glaucoma. S.R. informed Respondent when she gave her ocular history to Respondent at the outset of her eye examination on September 12, 1988, that her father had lost his eyesight due to glaucoma. A patient with a family history of glaucoma may be at a greater risk of having glaucoma than a patient without such a history if the family history of glaucoma is hereditary rather than the result of an accident or disease. Respondent knew that his assistant had not performed a non-contact tonometer on S.R.

   
   

5. Respondent did not perform a non-contact tonometry test (a "tonometry test") on S.R. during eye examination given to S.R. on September 12, 1988. A tonometry test is one of the tests used to screen for glaucoma. It is used to take a pressure reading using a machine that blows a puff of air in the patient's eye. The puff of air creates a startling sensation in the patient's eye that the patient does not easily forget. The machine used to give the tonometry in Linsey Eyecare was malfunctioning on September 12, 1988, and that particular test was not given to S.R. However, S.R. was given additional tests for glaucoma.

6. S.R. discovered through conversations with a third party that a tonometry test is one of the tests customarily used to screen for glaucoma.

   S.R. recalled that she had not received a test using a puff of air in her eye.

   S.R. called Linsey Eyecare and scheduled another eye examination for September 22, 1988. A tonometry test was given to S.R. during her second eye examination on September 22, 1988. 3/

   
   

   Negligence

   
   

7. The minimum standard of medical care requires that a patient with a family history of glaucoma receive a complete glaucoma screening. The examination of such a patient should be more extensive than the examination given to a patient without a family history of glaucoma.

   
   

8. A patient with a family history of glaucoma, at a minimum, should receive a tonometry test. If a tonometry test cannot be performed, intraocular pressure should be measured using the Goldman applanation tonometry. 4/

   
   

9. Irrespective of the method used to measure intraocular pressure, the cup to disc ratio should be measured to determine if cupping has occurred. Cupping is another clinical sign that increases the risk of glaucoma. The anterior angle should also be examined under a biomicroscope to determine if the angle is opened or closed. If a narrow angle is detected, fluid may not be draining properly and a gonioscopy should be performed to more accurately determine if the anterior angle is opened or closed. If all of the findings from the foregoing tests are positive, the patient should be given a visual field evaluation.

   
   

10. Respondent failed to conform to the minimum standard of care when he did not measure S.R.'s intraocular pressure by either a non-contact tonometry or an applanation tonometry during his patient's initial visit to Linsey Eyecare. Some type of tonometry test is the minimum requirement for glaucoma screening. For a patient with a family history of glaucoma, it is essential that the tonometry test be performed during the initial examination and not during a follow-up examination.

    
    

11. Respondent did not dilate S.R.'s eyes for further examination during her initial visit because S.R. had no other person available to drive her home. Respondent dismissed S.R. without performing any tonometry test, knowing that his patient had a family history of glaucoma. Respondent did not reschedule

    S.R. for a follow-up examination nor advise S.R. to arrange such an examination with Respondent's office or any other optometrist. The patient returned to Linsey Eyecare for a follow-up examination at her own insistence and not at the direction of Respondent.

    
    

12. Respondent conformed to the minimum standard of care for S.R. during her follow-up examination on September 22, 1988. Respondent performed both a non-contact tonometry and an applanation tonometry. Respondent measured the cup to disc ratio, the depth and angle of the anterior chamber, and performed a visual field screening using confrontation fields. All of the test results were within normal ranges. Based upon the absence of positive findings, a gonioscopy was not appropriate and was not done. The only act of negligence committed by Respondent was the failure to perform some type of tonometry during S.R.'s initial eye examination on September 12, 1988.

    Medical Records

    
    

13. Respondent failed to keep adequate written optometric records (the "records") for the initial eye examination given to S.R. on September 12, 1988. Respondent failed to document the reasons for omitting a tonometry from S.R.'s eye examination. In all other respects, the records maintained for the initial eye examination were adequate. The only notation in the family history is glaucoma. While the family history documented in the records was incomplete, the patient was unresponsive or uncooperative in providing such information. The reason for the incomplete family history was sufficiently documented with the notation "N". 5/

    
    

14. Respondent kept adequate records for the second eye examination given to S.R. on September 22, 1988. The notations in the records were difficult to read and the copies used by Petitioner's expert witness were of poor quality. Upon cross examination by Respondent, however, it was uncontroverted that proper and adequate records were maintained by Respondent for S.R.'s second eye examination.

    
    

15. The records of the second examination reveal that the cup to disc ratio was sufficiently documented by the notations "CD" for clear and distinct and ".3N" in both eyes. Color of the optic nerve head was adequately described by the notation "WNL". The depth and angle of the anterior chamber was adequately documented by the notation of "3/3+" (three over three plus). The confrontation fields were adequately documented by the notation of "full OU". Adequate records were maintained by Respondent even though they contained sloppy penmanship and the copies reviewed by Petitioner's expert were poor in quality.

    
    

    Advertisement

    
    

16. Respondent did not advertise goods or services in a manner that was fraudulent, false, deceptive, or misleading in form and content ("misleading"). The advertisement in question was not misleading. Even if it was misleading, the advertisement was placed by Linsey Eyecare under the direction of Dr. Venokour. Respondent was a subcontractor for Linsey Eyecare and had no control over the placement and content of advertising for that entity. 6/

    
    

    Repeated Violations

    
    

17. Respondent is guilty of repeated violations of applicable provisions of Florida law. In a Final Order entered on November 10, 1982, pursuant to Section 120.57(2), Florida Statutes, Respondent was found guilty of having failed to remove all of the metal fragments found in a patient's eye during repeated attempts at removal on December 24, 25, and 28, 1981, in violation of Section 463.016(1)(g). Respondent was fined $500 and placed on probation for one year.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

19. The burden of proof is on Petitioner in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the penalties requested by Petitioner should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

20. Petitioner showed by clear and convincing evidence that Respondent was negligent in the practice of optometry in violation of Section 463.016(1)(g), Florida Statutes. Florida Administrative Code Rule 21Q-3.007(2)(h) includes tonometry as one of the minimum procedures prescribed for vision analysis. Rule 21Q-3.007(4) requires that the minimum standard of care be given to the patient during the patient's "initial presentation". Respondent failed to conform to the minimum standard of care when he did not measure S.R.'s intraocular pressure by either a non- contact tonometry or an applanation tonometry during his patient's initial visit to Linsey Eyecare. The patient was not followed up by Respondent but was required to examine S.R. a second time only at the patient's insistence.

    
    

21. Petitioner showed by clear and convincing evidence that Respondent failed to maintain adequate written optometric records in violation of Section 463.016(1)(k), Florida Statutes. Florida Administrative Code Rule 21Q-3.007(3) requires that any omission of the minimum standard of care and the reason for omission must be noted in the patient's record. Respondent failed to note in S.R.'s records that a tonometry was omitted from the initial eye examination and the reason for such an omission.

    
    

22. Petitioner showed by clear and convincing evidence that Respondent is guilty of repeated violations of applicable provisions of Florida law in violation of Section 463.016(1)(h), Florida Statutes. In a Final Order entered on November 10, 1982, pursuant to Section 120.57(2), Florida Statutes, Respondent was found guilty of having failed to remove all of the metal fragments found in a patient's eye during repeated attempts at removal on December 24, 25, and 28, 1981, in violation of Section 463.016(1)(g). Respondent was fined $500 and placed on probation for one year.

    
    

23. Respondent's failure to provide a tonometry during S.R.'s initial eye examination and Respondent's failure to document the omission and reason for the omission in the patient's records constitute "Major Administrative Violations" within the meaning of Florida Administrative Code Rules 21Q- 15.002(2) and 21Q- 15.005(2)(f). The range of penalties for Major Administrative Violations is prescribed in Rule 21Q-15.003.

    
    

24. The Major Administrative Violations found to have been committed in this proceeding constitute second offenses by Respondent. The minimum penalty prescribed in Rule 21Q- 15.003(2)(b) for a second Major Administrative Violation is an administrative fine of $2,000 per count or offense and, if appropriate, a period of suspension of 12 months. The maximum penalty for a second violation is an administrative fine of $3,000 per count or offense and, if appropriate, a period of suspension of 18 months.

    
    

25. A determination of the actual penalty that is appropriate in an individual proceeding may take into account the aggravating and mitigating circumstances set forth in Florida Administrative Code Rule 21Q-15.007. Considering all of the facts and circumstances in this proceeding suspension is not appropriate and Petitioner has not requested suspension as part of the penalty that should be imposed against Respondent. The patient was properly examined approximately 10 days after a single act of negligence committed by Respondent and no positive findings were discovered in the patient. However, the acts committed by Respondent do constitute his second offense.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Petitioner should enter a Final Order finding Respondent guilty of failing to provide a tonometry during the patient's initial presentation and failing to document the patient's records as the omission and the reason for such an omission in violation of Sections 463.016(1)(g) and 463.016(1)(k), Florida Statutes. It is further recommended that the Final Order should impose an administrative fine in the aggregate amount of $4,000 and place Respondent on probation for one year subject to reasonable terms of probation to be determined by Petitioner.

RECOMMENDED this 24th day of September 1991, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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

24th day of September, 1991.

ENDNOTES

1/ Petitioner's 1 is the licensure file for Respondent. Petitioner's 2 is a copy of an advertisement placed by Respondent. Petitioner's 3 is a composite exhibit consisting of the medical records of the complaining witness.

2/ Respondent's Exhibit 1 is Respondent's resume.

3/ S.R. had difficulty with the prescription for glasses given to her after her first eye examination and had to return to Linsey Eyecare to correct that condition. However, that problem is not part of facts alleged in the Administrative Complaint and is irrelevant and immaterial to this proceeding.

4/ An applanation tonometry is a contact tonometry in which a tonometer is placed against the patient's eye after a topical anesthetic Fluorescein (yellow dye) is applied to the eye.

5/ Petitioner's expert admitted on cross examination that the notation "N" was sufficient to indicate that the patient was uncooperative in providing a family history. That fact was supported by direct testimony of the Respondent. The testimony of S.R. was less than clear and convincing. Her recollection was vague and she could not refute the Respondent's testimony.

6/ This issue is uncontroverted by Petitioner in its proposed conclusions of law at para. 5.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1547

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-6 Rejected as irrelevant and immaterial

1. Accepted in Findings 4-5

2. Rejected as irrelevant

and immaterial

9-11 Rejected as recited testimony

1. Accepted in Finding 12

2. Rejected for the reasons

stated in Findings 10-12

COPIES FURNISHED:

Patricia Guilford Executive Director Board of Optometry

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Laura P. Gaffney Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Russel Raye, O.D.

2179 Amesbury Circle

West Palm Beach, Florida 33414

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001547

Orders for Case No: 91-001547