STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2608

)

WILLIAM WILSON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Clearwater, Florida, on February 18, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Theodore E. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No Appearance

This case arose on Petitioner's Administrative Complaint charging Respondent with failure to treat patients with the required degree of skill, failure to maintain patient records and permitting an unlicensed individual to practice optometry. Petitioner submitted proposed findings of fact which are incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent has been licensed to practice optometry in Florida. Respondent's license was suspended for 60 days and placed on probation for one year beginning in 1979, after he pled guilty to charges of violating rules relating to competence in the practice of optometry and patient record maintenance.

   
   

2. The charges in the instant proceeding arose from his treatment of Linda (age 13) and Judy Agnew (age 11), beginning in June, 1981. He prescribed corrective glasses for both girls. Their mother, Mrs. Jean Braybrooks, had Linda's prescription filled, but became immediately dissatisfied when Linda could not see properly with the glasses.

   
   

3. Mrs. Braybrooks advised Respondent she was stopping payment on her check to him and took the children to another optometrist, Dr. Palmisano. She

   received new prescriptions for her daughters from Dr. Palmisano and her daughters have had no difficulty with these glasses.

   
   

4. Mrs. Braybrooks subsequently filed a complaint in this matter and Petitioner's investigators sought to obtain patient records on Linda and Judy Agnew from Respondent. The investigators contacted Respondent in October and November, 1981, but were advised on both occasions that he had destroyed those records.

   
   

5. Petitioner presented the testimony of Dr. John Walesby, who was qualified as an expert witness in the practice of optometry, including accepted standards of optometric care in the Tampa Bay area. Dr. Walesby examined the Agnew children in December, 1981, and determined that the prescriptions they received from Respondent were improper.

   
   

6. Dr. Walesby determined that the prescription for Linda Agnew was at considerable variance with the correct prescription and was unacceptable by community optometric care standards. 1/ The prescription for Judy Agnew, while not miscalculated, did not allow for the child's ability to adapt to the prescription. Again, this treatment failed to conform to accepted community standards.

   
   

7. Apparently one of the prescriptions at issue was signed by an unlicensed employee of Respondent in his behalf. It was not established that this was done outside Respondent's supervision or that it was improper.

   
   

   CONCLUSIONS OF LAW

   
   

8. Subsection 463.012(1), Florida Statutes (F.S.), provides:

   
   

   1. A licensed optometrist shall keep

      on file for a period of at least 2 years any prescription he writes.

      
      

9. Rule 21Q-3.03, Florida Administrative Code (F.A.C.), provides:

   
   

   An optometrist shall keep adequate written case records (including prescriptions)

   for a period of at least two years. Upon the closing of his practice, an optometrist shall transfer all case records (including prescriptions) which are less than two years old to a location where they may be obtained by patients.

   
   

10. Respondent first treated Linda and Judy Agnew in June, 1981. When records on these patients were sought by Petitioner in October and November, 1981, Respondent stated that he had destroyed them. Therefore, by failing to retain these records for at least two years, Respondent has violated the above quoted provisions of law.

    
    

11. Subsection 463.016(1), F.S., provides in part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

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

       * * *

       (n) Gross or repeated malpractice.

       
       

12. Respondent's incorrect determination that the patient Linda Agnew was nearsighted in her left eye was a serious error. His failure to consider Judy Agnew's need to adjust to the glasses he prescribed was a further breach of accepted community standards for optometric care. As such, these instances constitute incompetence and repeated malpractice in the practice of optometry in violation of the above provisions.

    
    

13. Subsection 463.016(1)(h), F.S., further establishes as a basis for disciplinary action:

    
    

    (h) A violation or repeated violations of provisions of this chapter, or of chapter 455, and any rules promulgated pursuant thereto.

    
    

14. By violating the records retention rule and the practice statutes discussed herein, Respondent is subject to discipline by Petitioner under the above quoted provision Respondent's earlier violation of optometric practice law as found in the 1979 proceeding 2/ should be considered in determining appropriate disciplinary action.

    
    

15. Subsection 463.016(2), F.S., provides for discipline as follows:

1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

   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 $1,000 for each count or separate offense.

   4. Issuance of a reprimand.

   5. Placement of the optometrist on probation . . .

RECOMMENDATION

In consideration of the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order finding Respondent guilty of the charges contained in the Administrative Complaint to the extent set forth herein and revoking his license to practice optometry in Florida.

DONE and ENTERED this 22nd day of April, 1983, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1983.

ENDNOTES

1/ Respondent found myopia (nearsightedness) in each eye while Dr. Walesby found hyperopia (farsightedness) in the left eye.

2/ See Petitioner's Exhibit 4.

COPIES FURNISHED:

Theodore E. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William Wilson

946 Patrician Avenue

Dunedin, Florida 33528

Mildred Gardner, Executive Director Board of Optometry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002608

Orders for Case No: 82-002608