STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 85-3671

)

SANTIAGO F. SUAREZ, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 28, 1987, in Miami, Florida.

APPEARANCES

For Petitioner: Edward H. Reise, Esquire

Suite 309

2555 Collins Avenue

Miami Beach, Florida 33140-4757

For Respondent: Eusebio E. Fernandez, Esquire

Suite 202

3971 S.W. 8th Street

Coral Gables, Florida 33134 PRELIMINARY STATEMENT

By administrative complaint filed with the Division of Administrative Hearings on October 24, 1985, Petitioner charges that Respondent is guilty of aiding, assisting, procuring or advising an unlicensed person to practice medicine; is guilty of practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which he knows or has reason to know he is not competent to perform; is guilty of delegating professional responsibilities to a person when he knew or had reason to know that such person was not qualified by training, experience or licensure to perform them; and is guilty of gross or repeated malpractice or the failure to practice medicine with that level of care, skill and

treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Sections 458.331(1)(g), (t), (v) and (w), Florida Statutes (1983). The gravamen of Petitioner's charge is that Respondent, a licensed physician, supervised the unlicensed opticianry/optometry practice of one Reynaldo Avello, and that Respondent lacked the skills necessary to competently supervise such practice.

At hearing, Petitioner called as witnesses: Carlos Ramirez, Reynaldo Avello, Sixto Hernandez, Francisco Alvarez-Gomez, Lorenzo Pijuan, Dr. Dale K. Lindberg, Dr. Lawrence Reese, and Dr. Santiago F. Suarez. Petitioner's exhibits 1-4, 5A, 5B, 6A, 6B, and 7-15 were received into evidence. Respondent testified on his own behalf.

The transcript of hearing was filed August 17, 1987, and the parties were granted leave until August 27, 1987, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Santiago F. Suarez (Suarez), was at all times material hereto licensed as a physician in the State of Florida, and held license number ME 0030132.

   
   

2. Suarez is a family practitioner, and has no specialized training relating to the human eye. He has never performed a refraction or prescribed eyeglasses during his medical career, nor has he had any training or experience in prescribing and fitting contact lenses.1

3. Commencing in the latter part of 1983 and continuing through the early part of 1984, Suarez acted as the supervising physician for Reynaldo Avello (Avello) when he performed refractions or fit contact lenses on clients of the Optical Medical Center; a business owned by Avello. During this time period, Avello routinely refracted the vision of his clients; measured the eyes of clients who desired contact lenses; prescribed eyeglasses and contact lenses; and prepared, dispensed or fit eyeglasses and contact lenses for his clients as well as clients of optometrists and ophthalmologists.

   
   

4. Avello is not, and never has been, a licensed optician or optometrist, and he has no formal education or training beyond high school. Consequently, his activities were proscribed by law unless they were appropriately delegated and supervised by a medical doctor.2 Chapter 463 and 484, Part I, Florida Statutes.

5. In this case Avello, not Suarez, prescribed eyeglasses and contact lenses. Avello conducted the eye examination, but limited his practice to refracting the eye and, when appropriate, to measuring the eye for contact lenses. Although Avello was ostensibly practicing under Suarez' supervision, Suarez was not competent to perform a refraction, or to prescribe and fit eyeglasses and contact lenses.

   
   

6. In fact, Suarez took no active part when client's eyes were refracted, but deferred to Avello's "expertise." Suarez limited his involvement to securing a brief medical history from the client, and being available in case an emergency arose.3 Suarez' reliance on Avello's "expertise," without inquiring as to his training and experience, was a serious error in judgment.

   
   

7. The only training Avello had in refracting the human eye occurred while he was employed part-time by the Union Latina clinic in Hialeah, immediately before he opened the Optical Medical Center. During his employment at the clinic, Avello was shown how to do a refraction by a board qualified ophthalmologist, but he never performed any refractions under that ophthalmologist's supervision.

   
   

8. In March 1980, Avello opened the Optical Medical Center. With the exception of the period during which Suarez supervised Avello, the center has always had in its employ a board qualified or certified ophthalmologist. During those times, all eye examinations were performed by the ophthalmologist, and Avello did no refracting.

   
   

9. While Avello considers himself qualified to do refracting, the proof regarding his training and experience renders his opinion unpersuasive. At no time was he shown to have worked under the supervision of a qualified practitioner, and no qualified practitioner was shown to be familiar with the quality of his work. Further, Avello was not shown to have had any qualified training or experience in measuring the human eye; prescribing eye glasses and contact lenses; or preparing, dispensing, and fitting eyeglasses and contact lenses.

   
   

10. Accordingly, the proof established that Suarez accepted and performed professional responsibilities which he knew he was not competent to perform, that he assisted an unlicensed person to practice medicine contrary to law, and that he delegated professional responsibilities to a person he should have known was not qualified to perform them. The proof further established that the existent community standard required that a complete eye examination be performed before eyeglasses or contact lenses could be prescribed, and that such standard was breached.

11. Suarez' failings could have resulted in profound adverse consequences to those patrons who were ostensibly refracted and fitted under his supervision. Improperly fit eyeglasses can result in blurred vision and nausea. More importantly, improperly fit contact lenses can result in permanent visual damage to the eye.

    
    

12. In mitigation, Suarez avers that he agreed to supervise Avello out of a sense of personal obligation, not profit; that his employment was to be for the limited time it took Avello to secure the services of another physician; and, that when he undertook to supervise Avello he believed such activity to be legal. Suarez also offered for consideration in mitigation the fact that he cooperated in the investigation of the Optical Medical Center, and the fact that he had never previously been disciplined.

    
    

13. Suarez' plea in mitigation is largely unpersuasive. While he may have undertaken Avello's supervision out of a sense of personal obligation, it was not without the expectation of compensation. Suarez and Avello had agreed, that if their association proved profitable, he would be compensated for his services.

    
    

14. Notably, while Suarez' desire to fulfill a personal obligation is admirable, its priority is far below that owed to those to whom he professed to render a professional service. In this case, Suarez' supervision permitted an unqualified person to render professional services that he, as a medical doctor, was not qualified to perform, and therefore not qualified to supervise. No physician could reasonably believe such conduct was appropriate.4

15. Suarez' assertion that his association with Avello was to be of limited duration is not only irrelevant, but contrary to the proof. Suarez supervised Avello for 1 1/2 years, and there was no showing that Avello or Suarez made any effort during that period to hasten his replacement. Notably, during his association with Avello's business, the front of the store proclaimed in bold guilding "Optical Medical Center, Santiago F. Suarez, M.D." Under the circumstances, the proof does not suggest that their association was to be casual or of short duration.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

17. Pertinent to this case, Section 458.331(1), Florida Statutes (1983) provides:

    
    

    1. The following acts shall constitute grounds for which . . . disciplinary actions.

       . . may be taken:

       
       

       * * *

       
       

       (g) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter.

       * * *

       
       

       (t) . . . the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

       
       

       * * *

       
       

       (v) . . . accepting and performing profes- sional responsibilities which the licensee knows or has reason to know that he is not competent to perform.

       
       

       * * *

       
       

       (w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience or licensure to perform them.

       
       

18. The proof established that Suarez violated the provisions of section 458.331(1)(9), (t), (v) and (w), Florida Statutes (1983) on a repeated basis between late 1983 and early 1985. Consequently, he is subject to the penalties prescribed by section 458.331(2), Florida Statutes (1983).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that:

1. The medical license of Respondent, Santiago F. Suarez, be suspended for a period of one (1) year, and that during the period of such suspension Respondent be required to complete such courses as the Board of Medicine may require to demonstrate an adequate comprehension of professional ethics, scope of practice for a family practitioner and delegation of professional responsibility; and

   
   

2. An administrative fine in the sum of $2,000.00 be ~ assessed against Respondent, Santiago F. Suarez.

DONE and ORDERED this 15th day of September, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1987.

ENDNOTES

1/ Suarez graduated from medical school in Cuba in 1960. During the course of his studies, he was apparently instructed in the basics of refracting on an instrument less sophisticated than those used today. He has not, however, done any refracting since that time, and was not shown to be qualified to do so.

2/ Pertinent to this case, Chapter 463, Florida Statutes, prohibits the practice of optometry by anyone other than a licensed optometrist or medical doctor. Optometry is defined by Section 463.002(4) to include:

. . . the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eye, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses . . . and any other means or methods for correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages.

A licensed optometrist may not delegate the duties, tasks and functions within the purview of section 463.002(4). Section 463.009, Florida Statutes.

Chapter 484, Part I, Florida Statutes, prohibits the practice of opticiaory by anyone other than a licensed optician. Opticiaory means:

. . . the preparation and dispensing of lenses, spectacles, eyeglasses, and other optical devices to the intended user or agency thereof, upon the written prescription of a medical doctor or optometrist who is duly licensed to practice. . .

A licensed optician may delegate such duties to an unlicensed person operating under his direct supervision. Section 484.011, Florida Statutes. In this case, Suarez was the only person shown to supervise Avello.

3/ The medical history Suarez secured from clients consisted of whether they suffered diabetes, headaches, thyroids, high blood pressure, or previous eye infections or injuries. No family history was apparently taken.

4/ The proof established that Avello's family befriended Suarez when he moved to Florida, and that he felt a sense of personal obligation toward Avello. When Avello's ophthalmologist left the Optical Medical Center in late 1983, Avello requested Suarez to supervise him so his business could remain open. Suarez averred that he accepted such appointment only upon Avello's assurance that it was proper.

In November, 1984, while the Optical Medical Center was under investigation, Avello avers that he called the Board of Medical Examiners (Board) and was told that the arrangement he and Suarez shared was permissible. What Avello disclosed to the Board was not, however, addressed at hearing. Accordingly, I decline to attach any significance to the Board's response.

While Avello may have represented to Suarez that he could lawfully supervise his practice, Suarez' reliance on such representation was unreasonable. No physician could reasonably believe that one could lawfully supervise what one was not qualified to perform.

COPIES FURNISHED:

Edward H. Reise, Esquire Suite 309

2555 Collins Avenue

Miami Beach, Florida 33140-4757

Eusebio E. Fernandez, Esquire Suite 202

3971 S.W. 8th Street

Coral Gables, Florida 33134

Joseph A. Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director Department of Professional

Regulation Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

   
   

2. Addressed in paragraphs 3 and 4. 3-5. Addressed in paragraphs 2-6.

6-7. Addressed in paragraphs 3.

8. Addressed in paragraphs 4-9, and 12-15. 9-10. Addressed in paragraphs 10 and 11.

11. Addressed in paragraphs 7-9.

Respondent's proposed findings of fact consisted of nine (9) unnumbered paragraphs. These paragraphs have been numbered 1-9 and addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

   
   

3. Addressed in paragraph 12.

   
   

4. Addressed in paragraph 3.

   
   

5. Addressed in paragraph 12.

   
   

6. Addressed in paragraphs 12 and 14.

   
   

7. Addressed in paragraph 12-15.

   
   

8. Addressed in paragraphs 3, 10 and 11.

   
   

9. Addressed in paragraphs 12-15.

   
   

   ================================================================= AGENCY FINAL ORDER

   ================================================================= BEFORE THE BOARD OF MEDICINE

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs.

   
   

   SANTIAGO F. SUAREZ, M.D., DPR CASE NO. 0058470

   DOAH CASE NO. 85-3671 LICENSe NO. ME 0030132

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came before the Board Of Medicine (Board) pursuant to Section 120.57(1)(b)9 Florida Statutes on November 21, 1987, in Tampa, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled cause. No exceptions were filed.

   Petitioner, Department of Professional Regulation, was represented by Bruce D. Lamb, Esquire. Respondent was present and represented by Eusebio E. Fernandez, Esquire.

   Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

   
   

   FINDINGS OF FACT

   
   

   1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein, as corrected by the Hearing Officer by Order dated September 30, 1987.

      
      

   2. There is competent substantial evidence to support the findings of fact.

      CONCLUSIONS OF LAW

      
      

      1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

         
         

      2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

         
         

      3. There is competent substantial evidence to support the conclusions of law.

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be rejected as too lenient under the circumstance. Specifically, the Board finds that, based upon its review of the entire record, it is clear that Respondent is not aware of his responsibilities to the public in the practice of medicine and his responsibilities relative to use of his license. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent's license to practice medicine in the State of Florida is SUSPENDED for a period of one (1) year.

   
   

2. Respondent shall pay an administrative fine in the amount of $200 to the Executive Director within 30 days of the date this Final Order is filed.

   
   

3. During the period of suspension, Respondent shall obtain at least 20 hours of Category 1 Continuing Medical Education per year in the subject areas of professional ethics, scope of practice for a family practitioner, and delegation of professional responsibility. Such Continuing Medical Education shall be in addition to any CME required for license renewal.

   
   

4. After completion of the period of suspension, Respondent's 1icense to practice medicine in the State of Florida is placed on PROBATION for a period of 2 years subject to the following terms and conditions:

   
   

   1. Respondent shall comply with all state and federal statues, rules and regulations pertaining to the practice of medicine, including Chapter 893, 455 and 458, Florida Statutes and Rules 21M, Florida Administrative Code.

      
      

   2. Respondent shall appear before the Board at the first meeting after said probation commences and at the last meeting of, the Board preceding termination of probation.

   3. In the event Respondent leaves the State of Florida for a period of thirty days or more, Respondent's probation shall be tolled and shall remain in a tolled status until Respondent returns to the State of Florida, at which time the probationary status shall resume.

      
      

   4. Respondent understands that during the course of the probation, quarterly reports shall be prepared by the: Investigators with the Department detailing Respondent's compliance with the terms and conditions of this probation. Respondent waives confidentiality of these reports as to the Department and the Board only so that the Board may review these reports.

      
      

   5. Respondent shall submit quarterly reports, In affidavit form, the contents of which shall be specified by the Board. The reports shall each include:

1. Brief statement of why he's on probation.

2. Practice location.

3. Describe current practice (type and composition)

4. Address compliance with probationary terms.

5. Describe relationship with supervisory/ monitoring physician.

6. Advise Board of any problems.

This Order takes effect upon filing.

Pursuant to Section 120.59, Florida Statutes the parties are hereby notified that they may appeal this final order by filing one filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

This order takes effect upon filing.

DONE AND ORDERED this 4th day of December, 1987.

BOARD OF MEDICINE

EMILIO ECHEVARRIA, M.D. CHAIRMAN

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Docket for Case No: 85-003671

Orders for Case No: 85-003671