STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-927

)

JULIUS H. REID, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This Final Hearing was conducted in Room 209, Putnam County Courthouse, Palatka, Florida, on September 1, 1983. Petitioner, through its counsel, has offered a proposed Recommended Order and that proposal has been reviewed prior to the entry of the Recommended Order. To the extent that the Proposal is consistent with the Recommended Order, it has been utilized. To the extent that the proposal is inconsistent with the Recommended Order, it has been rejected as being irrelevant, immaterial, contrary to facts found, contrary to conclusions of law reached and contrary to the recommended disposition. Respondent did not offer a proposed Recommended Order.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Chief Attorney, Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Joe C. Miller, Esquire

Post Office Box 803 Palatka, Florida 32078

ISSUES

The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this

patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.

FINDINGS OF FACT

1. At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida.

   
   

2. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore.

   
   

3. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid.

   
   

4. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code.

   
   

5. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent

   should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted.

   
   

6. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.

   
   

8. Respondent has violated Rule 21Q-3.07(1)(c), Florida Statutes, in that he failed to record findings in the cover test and visual field testing. In addition, Respondent violated Section 463.012(2), Florida Statutes, by failing to make available a duplicate copy of the January 26, 1982, prescription which was requested on May 29, 1982.

   
   

9. Violation of the rules provision and statutory requirement set forth in the prior paragraph, constitutes a grounds for disciplinary action under Section 463.016(1)(h), Florida Statutes, and subjects Respondent to the penalties set forth in Section 463.016(2), Florida Statutes.

   
   

10. In addition, by conducting the examination of May 29, 1982, contrary to acceptable community standards related to the practice of optometry, Respondent has violated Section 463.016(1)(g), Florida Statutes, in that he is guilty of misconduct in the practice of optometry. For this violation, he is subject to the penalties set forth in Section 463.016(2), Florida Statutes.

    
    

11. Based upon a full consideration of the facts found and conclusions of law reached, it is,

RECOMMENDED: That a final order be entered which imposes an administrative fine in the amount of $500 total.

DONE and ENTERED this 21st day of November, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 21 day of November 1983.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joe C. Miller, Esquire

P.O. Box 803

Palatka, Florida 32078

Fred Roche, Executive Director Department of Professional Regulation Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Mildred Gardner, Executive Director Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY

STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, CASE NO. 28597

DOAH CASE NO. 83-927

vs.

JULIUS H. REID, O.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Optometry on January 13, 1984, in Tampa, Florida for consideration of a recommended order entered November 25, 1983, by hearing officer Charles C. Adams. Pursuant to its consideration of the recommended order, the Board hereby adopts the findings of fact and conclusions of law contained in the recommended order but upon a review of the entire record of this case increases the recommended penalty from $500.00 to $1,000.00 plus two years probation conditioned on Respondent's compliance with the laws and rules governing the practice of optometry.

It is hereby ORDERED that:

Respondent pay an administrative fine of $1,000.00 to the Executive Director of the Board, such payment to be made by certified check within 30 days of this order. Respondent shall also be on probation for a period of two (2) years from rendition of this order, the condition of which shall be that Respondent comply with the laws and rules governing the practice of optometry.

Respondent may appeal this Final Order within 30 days from rendition pursuant to the Florida Rules of Appellate Procedure and Section 120.68, F.S.

DONE and ORDERED this 30th day of January, 1984.

BOARD OF OPTOMETRY

By:

C. Linden Davidson, O.D.

Chairman

cc: Joseph W. Lawrence, II, Esquire Julius B. Reid, O.D.

Docket for Case No: 83-000927

Orders for Case No: 83-000927