STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4121

)

MARK L. KLUGMAN, O.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on September 5, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Laura P. Gaffney, Esquire

1940 N. Monroe Street Suite 60

Tallahassee, FL 32399-0792

For Respondent: Mark L. Klugman, pro se

4201 49th Street North No. 202

St. Petersburg, FL 33709 STATEMENT OF THE ISSUES

Whether Respondent was negligent in prescribing glasses for patient A.J.F. on or about March 15, 1990.

PRELIMINARY STATEMENT

By Administrative Complaint filed May 24, 1991, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Mark L. Klugman, Respondent, as an optometrist. As grounds therefor, it is alleged that in examining and prescribing glasses for patient A.J.F. on or about March 15, 1990, Respondent was negligent and thereby violated Section 463.016(1)(g), Florida Statutes, and failed to meet the minimum procedures for vision analysis in violation of Section 463.016(1)(h), by violating Rule 21Q-3.007(2)(e), Florida Administrative Code.

Respondent contested the charges, and these proceedings followed. At the hearing, Petitioner called four witnesses, Respondent testified in his own behalf, and four exhibits were admitted into evidence. During these proceedings, Petitioner dismissed Count II of the Administrative Complaint involving a violation of Section 463.016(1)(h), Florida Statutes. This leaves

as the only issue Respondent's alleged negligence in prescribing glasses for A.J.F.

Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof. Having considered all evidence presented, I submit the following:

FINDINGS OF FACT

1. On or about March 15, 1990, A.J.F., an 86 year old white male went to the office of Respondent for the purpose of getting an eye examination and new glasses.

   
   

2. A.J.F. had lens implants in both eyes in 1984 and had some astigmatism.

   
   

3. Respondent examined A.J.F. and prepared a prescription for new glasses for A.J.F.

   
   

4. The glasses were made by Disston Optical, a company independent of Respondent, but located in the same building as Respondent's office.

   
   

5. A.J.F. picked up his glasses a week or two after his prescription was written and started home with them. After driving with the new glasses for about five minutes, A.J.F. concluded that he could not see well through the right lens of the glasses and replaced them with his old glasses. Later that evening, A.J.F. tried to read with his new glasses and again found he could not see well through the right lens.

   
   

6. Within 24 hours of picking up these new glasses, A.J.F. returned to Respondent's office with the glasses complaining that he couldn't see well through the right lens. Respondent told A.J.F. that he should wear the glasses for a week or two before deciding they were unacceptable. A.J.F. demurred, and Respondent took the glasses from A.J.F. and walked into the back of his office. Respondent made no offer to check the glasses or reexamine A.J.F.

   
   

7. Earlier A.J.F. had problems with glasses prescribed by another optometrist and complained to the optometrist who put the glasses in A.J.F.'s pocket. Although A.J.F. wrote a letter to Medicare not to pay for the unsatisfactory glasses, he found they did pay because he had taken the glasses.

   A.J.F. did not intend to repeat that mistake.

   
   

8. Following Respondent's refusal to do anything about A.J.F.'s glasses,

   A.J.F. complained to the Department of Professional Regulation and sent a letter to a Channel 8 TV ombudsman (8 on your side) complaining of Respondent and optometrists in general.

   
   

9. The complaint of A.J.F. was investigated by Petitioner which investigation included A.J.F.'s medical records from Respondent and from an ophthalmologist previously seen by A.J.F. and also seen by the ophthalmologist subsequent to having been seen by Respondent.

   
   

10. These records show that Respondent's prescription for the right eye of

    A.J.F. contained an axis of 45 degrees for the astigmatism adjustment while prior examinations contained an axis of 85 to 95 degrees for this same adjustment.

11. Following his failure to obtain satisfactory glasses from Respondent,

    A.J.F. went to the ophthalmologist he had previously seen, Dr. Don B. Knapp, II, M.D., to obtain glasses. Dr. Knapp's examination on June 7, 1990 (Exhibit 2) determined the astigmatism field adjustment was 85 degrees for the right eye.

    
    

12. The axis for the astigmatism in A.J.F.'s right eye of 90-95 degrees in earlier examinations, a 45 degree axis in Respondent's examination, and an 85 degree axis in Dr. Knott's examination a couple of months after Respondent's examination constitutes a significant change which would indicate a distinct possibility exists that the axis determined by Respondent was inaccurate. The fact that there was approximately a 45 degree change in this axis between A.J.F.'s earlier examination and the examination conducted by Respondent should have alerted Respondent that his examination could have been in error when

    A.J.F. returned with the glasses complaining that he could not see clearly through the right lens. An error of that magnitude could very well lead to the patient being unable to see through the glasses.

    
    

13. By failing to conduct a further examination of A.J.F. or to check the lens to see if it was made in accordance with the prescription he issued, Respondent was negligent in the practice of optometry.

    
    

14. It is also clear that A.J.F. has a history of complaining about new glasses that are prescribed for him, and he can be characterized as a difficult patient.

    
    

15. By Final Order entered June 22, 1989, Dr. Klugman was found guilty of violating Section 463.016(1)(g)(negligence of the practice of optometry) and Section 463.016(1)(h)(violation of Rule 21Q-3007, Florida Administrative Code), was fined $1,500, and his license was placed on probation for 12 months. By Final Order entered March 14, 1991, based upon a Stipulation, Respondent was ordered to pay a civil judgment entered against him in Hillsborough County Court in the amount of $177 and to refrain from violating Chapters 455 and 463, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. In these proceedings, Petitioner has the burden to prove the allegations of negligence by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. Section 463.016(1), Florida Statutes, provides the following acts shall constitute grounds for which a disciplinary action specified in subsection

    (2) may be taken.

    
    

    * * *

    (g) Fraud or deceit, negligence or incompetency, or misconduct in the practice of optometry.

    
    

18. Subsection (2) authorizes the following penalties for violations of subsection (1):

    
    

    1. Refusal to certify to the department an application for licensure.

    2. Revocation or suspension of a license.

    3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the licensed practitioner on probation for a period of time and subject to such conditions as the board may specify, including requiring the licensed practitioner to submit to treatment, to attend continuing education courses, or

       to work under the supervision of another licensed practitioner.

       
       

19. Rule 21Q-15.002(3), Florida Administrative Code, defines minor patient care violation to mean

    
    

    A violation of Chapters 455, 463 or applicable sections of 465 or 499, Florida Statutes, or the applicable rules promulgated thereunder, which involves the diagnosis or treatment of a patient and which does not directly endanger the public health, safety, and welfare of the citizens of the State of Florida.

    
    

20. Respondent's negligence in refusing to recheck A.J.F.'s eyes after

    A.J.F. returned complaining of being unable to see clearly through the right lens fits the classification of minor patient care violation above described. This failure to recheck in this instance demonstrated negligence in view of the

    45 degree axis found by Respondent in the right eye, whereas previous examinations had found a 90-95 degree axis, and this information was available to Respondent.

    
    

21. Rule 21Q-15.004, Florida Administrative Code, establishes a range of penalties for patient care violations. Subsection (1)(c) thereof for a third minor violation establishes an administrative fine of not less than $2,000 or more than $5,000 per count or offense and a period of suspension of not less than three months nor more than 12 months.

    
    

22. Since this is Respondent's third violation of Chapter 463, Florida Statutes, the minimum penalty prescribed is an administrative fine of $2,000 and suspension of his license for three months.

    
    

23. From the foregoing, it is concluded that Petitioner has proved by clear and convincing evidence that Respondent, in failing to recheck A.J.F.'s eyes when A.J.F. returned complaining of his inability to see clearly through the right lens, violated Section 463.016(1)(g), Florida Statutes, as alleged. This negligence constituted a minor patient care violation as A.F.J.'s health safety or welfare was not endangered.

RECOMMENDATION

It is recommended that a Final Order be entered finding Mark L. Klugman, O.D., guilty of violating Section 463.016(1)(g), Florida Statutes, assessing an administrative fine of $2,000, suspension of his license for three months, and placing Mark L. Klugman's license on probation for a period of 12 months under such terms and conditions as the Board of Optometry deems appropriate.

ENTERED this 7th day of October, 1991, in Tallahassee, Florida.

K. N. AYERS 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 7th day of October, 1991.

APPENDIX

Proposed findings submitted by Petitioner are accepted, except for finding

9. While a licensee on probation would be expected to be more careful than one not on probation, there is no legal requirement that the probationee exercise a higher standard of care than a licensee not on probation.

Respondent's proposed findings are accepted, except for:

Finding 3 - No evidence was submitted that Respondent verified the accuracy of the spectacles or that A.J.F. returned the spectacles to Disston Optical.

Finding 4 - Last sentence rejected. No evidence was submitted that A.J.F. returned the spectacles to Disston Optical.

COPIES FURNISHED TO:

Laura P. Gaffney, Esquire Department of Professional

Regulation

1940 N. Monroe Street Suite 60

Tallahassee, FL 32399-0792

Mark L. Klugman

4201 49th Street North No. 202

St. Petersburg, FL 33709

Patricia Guilford Executive Director Board of Optometry

Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation, Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 91-004121

Orders for Case No: 91-004121