STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) Case No. 86-4103
)
JON F. STONEBURNER, O.D., )
)
Respondent. )
)
RECOMMENDED ORDER
The formal administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer, in Bradenton, Florida, on October 30, 1987, May 17, 1988, and August 31, 1988. The issue in this case is whether in November, 1985, the Respondent performed minimum procedures of vision analysis as set forth in rule 21Q-3.07, (renumbered rule 21Q-3.007), Fla. Admin. Code, upon Alison Lichtenstein and Mary Pfab, O.D., and whether the Respondent recorded or caused to be recorded results of procedures that were not performed. The tests at issue in this, case are the visual fields test, the pupillary examination, the extra ocular muscle balance test, and, in the case of Dr. Pfab only, the tonometry examination.
APPEARANCES
Appearing for the parties were:
For the Petitioner: Thomas W. Stahl, Esquire
Phillip Miller, Esquire Newell & Stahl, P.A.
817 North Gadsden Street Tallahassee, Florida 32303-6313
For the Respondent: Robert J. Elkins, Esquire
46 North Washington Street, Suite 12 Sarasota, Florida 33577
The Petitioner presented 9 exhibits which were admitted into evidence, and the testimony of Mary Pfab, O.D., Alison Lichtenstein, Judith Leff, and Peter Provost, O.D.. The Respondent presented 3 exhibits which were admitted into evidence, and the testimony of Bobby Joe Shewmaker, M.D., Elaine Johnston, Paula Freeman, Robert L. Kantor, M.D., and the Respondent. There is a transcript.
References to the October 30, 1987, transcript will use the abbreviation "T" and references to the transcript of August 31, 1988, will use the abbreviation "T2." The parties submitted proposed findings of fact and conclusions of law.
FINDINGS OF FACT
Introduction
The Respondent, Jon F. Stoneburner, O.D., is a licensed optometrist in the State of Florida, and has been so licensed since January, 1977.
On November 7, 1985, Alison Lichtenstein and Mary Pfab, O.D., went to the office of the Respondent, Jon F. Stoneburner, O.D., for eye examinations. Both used fictitious names. Ms. Lichtenstein presented herself as Alison Smith, and Dr. Pfab presented herself as Mary Parker.
During the visual analysis by Dr. Stoneburner of Ms. Lichtenstein, Dr. Pfab was seated six to eight feet away. T2. 43. Dr. Stoneburner's back was facing Dr. Pfab, and she was viewing the examination of Ms. Lichtenstein from an angle. T2. 41. On the diagram drawn by Dr. Pfab, Dr. Pfab was seated in the position marked either 1 or 2, Dr. Stoneburner was located at the position marked St., and Ms. Lichtenstein was seated in the chair which is marked C. R. Ex. 3; T2. 40.
Located in the room was a stand, a Phoropter, a biomicroscope, a keratometer, a retinoscope, and a tangent screen. T2. 40, 42. It is normal for such equipment to be placed on either the right or left side of the examination chair. T2. 43. It is concluded that some of this equipment was to one side or the other of the examination chair in which Ms. Lichtenstein was seated, but the actual positioning of the equipment is not in evidence in this record. T2. 41-
Although the equipment may have been to the left or right of the examination chair, from the diagram it is evident that placement of the equipment to either the left or right side would not have obstructed Dr. Pfab's vision of Dr. Stoneburner and Ms. Lichtenstein since Dr. Pfab was seated on an angle behind Dr. Stoneburner. R. Ex. 3.
From the diagram drawn and Dr. Pfab's testimony, it is concluded that Dr. Pfab was unable to clearly see Dr. Stoneburner's examination of Ms. Lichtenstein with respect to placement of Dr. Stoneburner's hands very close to Ms. Lichtenstein's face, i.e., one or two inches away from Ms. Lichtenstein's face, since Dr. Pfab's vision of such movements would have been partially blocked by Dr. Stoneburner's body. Other than that blind spot, Dr. Pfab could clearly see Dr. Stoneburner's movements during the examination, and could hear everything he said. T2. 43-44.
Dr. Pfab received a degree in optometry in 1985. T. 10. At the time of the examination by Dr. Stoneburner, Dr. Pfab had had an externship in Jacksonville, Florida, and Fort Lee, Virginia, and was a licensed optometrist in Tennessee. T. 10-11. During her externships, she was required to perform eye examinations that conformed to the requirements of rule 21Q- 3.007, Fla. Admin. Code. T. 11. Dr. Pfab was licensed as an optometrist in Virginia and North Carolina in 1986, and in Florida in 1987. T. 11.
Dr. Pfab was tendered as and accepted as an expert witness in the practice of optometry in Florida. T. 12, 16-18.
In the first day of the formal hearing, the Hearing Officer sustained an objection to the testimony of Dr. Pfab to the extent that it involved her work for the Petitioner as an investigator. Following the close of the hearing, the Hearing Officer on his own motion determined that this ruling was in error, and reopened the record to allow Dr. Pfab to testify as to the results of her
investigation on behalf of the Petitioner. That portion of the reopened hearing was conducted on August 31, 1988.
Ms. Lichtenstein was not accepted as an expert with respect to the minimum examination procedures in the practice of optometry in Florida. T. 47, 50-51. She was allowed, however, to testify as a lay witness to what she perceived in the course of her investigation conducted on behalf of the Petitioner.
Following the November 7, 1985, visit of Dr. Pfab and Ms. Lichtenstein, Ms. Judith Leff interviewed the Respondent and obtained copies of the records of the examinations of Dr. Pfab and Ms. Lichtenstein. T. 65. Ms. Leff asked Dr. Stoneburner to show her in the records of each patient where each of the minimum procedures listed in the rule had been recorded as having been performed, and Dr. Stoneburner showed Ms. Leff in both records where there was an entry that each procedure had been performed. T. 74.
The patient records that are at issue in this case, P. Exs. 5 and 6, were not signed by Dr. Stoneburner in his capacity as a licensed practitioner of optometry, and Dr. Stoneburner's signature on these patient records was not required by law.
It is normal practice in optometry for an optometrist to improvise and devise his or her own techniques for performing the minimum examination procedures. T. 92, 95.
The visual fields or confrontation fields test
A visual fields test tests the retina and the nerve pathways to the brain. T. 84. A visual fields test is a check for a brain tumor, and particularly a pituitary tumor. T2 -22.
A visual fields test is required as a part of a minimum eye examination by an optometrist in the State of Florida.
A minimum visual fields test is a confrontation fields test. T. 28,
80.
In the confrontation fields test, the patient covers one eye with an
opaque object, commonly a paddle. The patient is then asked to focus the other eye upon an object held by the examiner. The patient is required to tell the examiner when he or she can see the object moving into his or her peripheral vision. The examiner then moves a second object from beyond the peripheral vision of the patient from both horizontal sides (left and right) and from both vertical sides (up and down). The examiner observes that the patient continues to focus upon the target object. A confrontation fields test necessarily involves communication from the patient to the optometrist. T. 20-21,80-81, 124, 164, 185.
The movements necessary to conduct a confrontation fields test (movement of paddles, movement of objects to the right and left sides of and above and below the patient's head) would have been visible to Dr. Pfab seated behind Dr. Stoneburner, and would not have been blocked by his body or equipment. Dr. Pfab, of course, could easily have observed these movements during her own examination.
Dr. Pfab could have heard Dr. Stoneburner communicating with Ms. Lichtenstein during the confrontation fields test had he done so, and certainly would have observed Dr. Stoneburner communicating with her during her own examination.
Neither Dr. Pfab nor Ms. Lichtenstein had any handicap or other impediment that would make normal voice communication not feasible between either of the two patients and Dr. Stoneburner. T. 189.
Other forms of visual fields tests are more complicated and involved than a confrontations fields test. There is no evidence in this record that Dr. Stoneburner used any other more complicated test.
Dr. Stoneburner could not remember whether he did a confrontation fields test on Ms. Lichtenstein by moving objects in and out of her peripheral vision and communicating with her concerning what she saw. T. 180. He did not testify that he performed any other specific form of confrontation fields test on Ms. Lichtenstein. He asserted, however, based upon his written record that some form of visual fields testing was done. T. 181.
At no point during the examination did Dr. Stoneburner ask Ms. Lichtenstein if she could see his fingers or any other object moving or to look straight ahead at any object. T. 56-57.
At no point during the examination did Dr. Stoneburner stand in front of Ms. Lichtenstein and bring an object into and out of view or ask her to line up objects horizontally and vertically. T. 59.
Ms. Lichtenstein moved her eyes, as one normally does, as she entered the room and while she was in the examination room. T. 62.
Observation of a patient as he or she walks and avoids obstacles gives the optometrist some indication as to the visual field of the patient. It is not an adequate confrontation fields test. The expert who testified as to this issue was asked on two occasions whether mere observation of a patient walking would constitute an adequate visual fields test, and he failed to answer except to imply that such observation would be a partial visual fields test. R. Ex. 2, pp. 15-17. It is concluded that observation of a patient as he or she walks and avoids obstacles is not an adequate visual fields test.
Ms. Lichtenstein could have observed Dr. Stoneburner moving equipment within the room, but Dr. Stoneburner did not ask her the extent to which she saw the equipment move. T. 64. Without such communication, the movement of equipment is not an adequate visual fields test because Dr. Stoneburner would have had no way to know the extent to which Ms. Lichtenstein saw such movement.
Dr. Stoneburner did not perform a visual fields or confrontation fields test on Ms. Lichtenstein. T2. 19. Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Ms. Lichtenstein, however, and Ms. Lichtenstein's patient record has an entry indicating that a confrontation fields test was done. T2. 19; P. Ex. 5.
Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Dr. Pfab, and Dr. Pfab's patient record has an entry that indicates that a confrontation fields test was done, but Dr. Stoneburner did not perform a confrontation fields test on Dr. Pfab. T2. 25-26;
P. Ex. 6.
The pupillary examination
A pupillary examination is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27.
A pupillary examination is useful to detect brain tumors, diabetic conditions, retinal detachment, temple arteritis, optic neuritis, and other diseases. T. 82; T2. 21-22.
There are three parts to a pupillary examination: direct, consensual, and accommodative. T. 79. In the direct pupillary examination, the doctor observes if the pupils are the same size and shape. T. 25. The eye is then approached from about 12 inches away with a light such as a penlight, and if the pupil constricts, a normal response is recorded. In the consensual pupillary examination, the light from 12 inches is moved to the opposite eye, and the response of the first eye is observed. T. 79, 26, 34, 123. Additionally, the light is swung back and forth from eye to eye from about 12 inches to check for Marcus Gunn pupil defect. T. 26, 34. The accommodative pupillary examination is performed by having the patient focus in the distance; the patient then is asked to look at a close object, with the eyes crossed, and the reflex of the pupils is observed. T. 80.
A pupillary examination is performed in dim illumination. T. 25; T2. 21, 44-46.
The actions of a doctor performing a pupillary examination are very obvious to an observer familiar with the nature of such an examination. The exam is not difficult to see as it occurs. T2. 36. The movements of hands and oral communication necessary to conduct a pupillary examination on Ms. Lichtenstein (movement of a light back and forth from a distance of 12 inches and communicating with the patient to ask the patient to focus in the distance and then to focus at a close object) involve activities that Dr. Pfab could have clearly perceived from where she was seated behind Dr. Stoneburner. Dr. Pfab clearly could have observed and heard these same actions during her own examination.
It is irrelevant that she could not observe the results of the examination. T2. 44.
Dr. Stoneburner stated to investigator Leff that he normally performed the external examination and the pupillary examination during the biomicroscopy (slit lamp) examination, and that he normally also performed the external examination during the ophthalmoscope examination. T. 68.
In direct testimony, however, Dr. Stoneburner testified that he normally does the external examination and the pupillary examination with his penlight. T. 169. He also stated that he did these examinations right after (or during) the visual acuities test. T. 169. He testified that he generally does the visual acuities test, but he assumed that his staff did it on Ms. Lichtenstein and Dr. Pfab, though he was unclear on the point. T. 168, 183.
There is no evidence that Dr. Stoneburner used a pen light to examine either Ms. Lichtenstein or Dr. Pfab.
Later in his testimony, Dr. Stoneburner testified that he did the pupillary examination in three ways. The first was by "sweeping of the pencil
while they're watching the chart . . . ." T. 173-74. The second was during the slit lamp observation. T. 174. And the third was with the ophthalmoscope. T. 174.
During the examination of Ms. Lichtenstein, Dr. Stoneburner did not shine the light of the opthalmoscope into either of her eyes from a distance greater than one inch. T. 52- 53. Dr. Stoneburner did not stand in front of her and shine a light into either of her eyes. T. 59.
Dr. Stoneburner testified that he felt he could do a direct pupillary examination with a slit lamp, but admitted that a consensual pupillary examination is often not done with a slit lamp. T. 175.
Since the slit lamp is so large and heavy, it is unsuitable to use for a consensual pupillary examination because it is so difficult to move the slit lamp back and forth. T2. 31-32. Moreover, the slit lamp fits directly against the face, and has a chin rest, making such gross movements improbable. T. 143.
In the examination of Ms. Lichtenstein and of Dr. Pfab, Dr. Stoneburner did not swing the biomicroscope (slit lamp) from eye to eye. T. 60; T2. 64.
Dr. Stoneburner did not conduct a pupillary examination upon either Ms. Lichtenstein or Dr. Pfab, T. 59-60, T2. 17, 20-21, 27, 30, but the notation "normal" for the direct and consensual pupillary test ("pupils D & C") was entered on the charts of both Ms. Lichtenstein and Dr. Pfab. P. Exs. 5 and 6; T2. 30.
The extra ocular muscle balance test
An extra ocular muscle balance test is one of the minimum procedures that must be performed by an optometrist during vision testing in the State of Florida. T2. 16-17, 23.
The purpose of the extra ocular muscle balance test is to check for the existence of binocular vision (use of both eyes) and the neurological integrity of the eye muscles. T2. 64.
From notations in Ms. Lichtenstein's record, Dr. Stoneburner believed that the extra ocular muscle balance test was performed on Ms. Lichtenstein. T. 181-82. Relying upon notations on the chart, since he had no memory on the subject, he concluded that a stereo fly test and depth perception fusion tests had been performed on her, and that these tests assessed extra ocular muscle balance. Id. He noted in particular that "No. 8," which is the place on the chart for recording phorias, was "ortho" or normal. Ms. Lichtenstein's record shows the notation "0" for phorias No. 8. P. Ex. 5. He also noted that there was a negative (abbreviated "ng") notation on her record for the cover test.
Observation of a person moving his or her eyes around the room from across the room is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 78.
One form of extra ocular muscle balance test is a cover test. The test is performed with the patient focusing upon a distant object and a near object. In both cases, the optometrist covers and uncovers the one eye several times, watching the movement of the eye that is not being covered. Then the other eye is tested in the same way. Finally, the object used to cover the eye
is moved back and forth to cover one eye and then the other, and the movement of the uncovered eye as it is uncovered is observed. Thus, the cover test has four parts. T2. 20; T. 126.
Only one fourth of a cover test can be performed during a visual acuity test. T. 31, 34-35. Thus, an extra ocular muscle balance test cannot be done by an acuity test. T2. 37.
A stereo acuity test is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 64, 38.
Phorias is a form of extra ocular muscle balance test. T2. 30.
Phorias are a measurement of the alignment of the eyes. T2. 29. The patient's eyes are disassociated with prisms, and the patient is asked to align the image from each eye vertically and horizontally. Id.
Although there is a notation in her record (the symbol O) that phorias were performed on Dr. Pfab, Dr. Stoneburner did not perform that procedure upon her. P. Ex. 6; T2. 29. Dr. Pfab certainly would have observed if Dr. Stoneburner had disassociated her eyes with prisms.
The movements necessary to perform a cover test (covering and uncovering an eye) would have been clearly seen by Dr. Pfab from where she was sitting behind Dr. Stoneburner.
Dr. Stoneburner did not perform a cover test or extra ocular muscle balance testing on Dr. Pfab, but he called out tests results for a cover test, and those results were recorded on Dr. Pfab's chart by the notation "ng." T2. 25, 27, 29; P. Ex. 6.
Dr. Stoneburner did not perform an extra ocular muscle balance test or a cover test upon Ms. Lichtenstein, but he did call out results of a cover test for recording on Ms. Lichtenstein's chart, and those results were recorded on Ms. Lichtenstein's chart by the notation "ng." T2. 20, 23; P. Ex. 5.
The tonometry test
A tonometry test is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27.
Dr. Stoneburner had an air-puff tonometer in his office, but not in the room he used to examine Ms. Lichtenstein and Dr. Pfab. T2. 27, 42.
Dr. Stoneburner has delegated the tonometry examination to a non- optometrist member of his staff. T. 133.
Dr. Pfab wore hard contact lenses during her visit to Dr. Stoneburner.
P. Ex. 6.
Dr. Stoneburner determined to not perform tonometry testing on Dr. Pfab because he determined that he needed her records to be able to do a proper test because she wore hard contact lenses. T2. 83.
Dr. Stoneburner noted in Dr. Pfab's patient record that he would perform tonometry on her next visit. P. Ex. 6.
Dr. Pfab was not told that she needed to return for tonometry testing. T2. 28.
Prior disciplinary action
By order dated January 30, 1984, Dr. Stoneburner paid $500.00 in costs to settle disciplinary case number 31308, but neither admitted nor denied the charges brought against him. The case ended by settlement, and Dr. Stoneburner was not represented by a lawyer. The charge is accurately represented in P. Ex.
9 and concerned the allegation of practice under a trade name. "The Eye Center," and thus the allegation of engaging in the practice of optometry with unlicensed persons.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding.
Disciplinary action with respect to a professional license must be based upon clear and convincing proof of substantial causes justifying the sanction. Ferris v. Turlington, 510 So.2d 292, 295 (Fla. 1987).
The administrative complaint alleges the following violations:
Violation of sections 463.016(1)(h) and (k), Fla. Stat., and rule 21Q-3.07 (renumbered 21Q-3.007), Fla. Admin. Code, on or about November 11, 1985, by not performing or recording the minimum procedures for vision analysis on Alison Lichtenstein and Mary Pfab. (Counts I and II.)
Violation of sections 463.016(1)(e) and (g), Fla. Stat., by calling out the results of examination procedures not in fact performed on Alison Lichtenstein and Mary Pfab. (Count III.)
Rule 21Q-3.07 (renumbered 21Q-3.007) provides in relevant part:
An examination for vision analysis shall include the following minimum procedures which shall be recorded on the patient's case record:
* * *
Pupillary examination;
Visual field testing (confrontation or other);
* * *
(h) Tonometry;
* * *
(j) Extra ocular muscle balance assessment:
* * *
If, because of the patient's age or physical limitations, one or more of the procedures specified herein or any part thereof, cannot be performed, the reason for same shall be noted on the patient's case record.
Section 463.016(1)(e), (g), (h), and (k), Fla. Stat., provide:
The following acts shall constitute
grounds for which the disciplinary action specified in subsection (2) may be taken:
(e) Making or filing a report or record which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to do so. Such reports or records shall include only those which are signed by the licensee in his capacity as a licensed practitioner.
Fraud or deceit, negligence or incompetency, or misconduct in the practice of optometry.
A violation or repeated violations of provisions of this chapter, or of chapter 455, and any rules promulgated pursuant thereto.
(k) Failing to keep written optometric records about the examinations, treatments, and prescriptions for patients.
On November 7, 1985, Dr. Stoneburner did not perform a visual fields examination, a pupillary examination, or an extra ocular muscle balance test on Ms. Lichtenstein, and he did not perform a visual fields examination, a pupillary examination, or an extra ocular muscle balance test on Dr. Pfab. These are minimum procedures for visual analysis required by rule 21Q- 3.007(1)(d), (e), and (j), Fla. Admin. Code. The failure to perform these minimum procedures was a violation of those rules and section 463.016(1)(h), Fla. Stat.
Dr. Stoneburner called out the results of the foregoing minimum procedures for visual analysis, even though he did not do them, and thus caused the fictitious and false results of those tests to be recorded in the patient records of Ms. Lichtenstein and Dr. Pfab. The recording of false entries in these patient records was intended by Dr. Stoneburner to deceive and mislead State officials with respect to his compliance with the rules governing minimum procedures for vision analysis, and to give the false impression that he had complied with those rules. Dr. Stoneburner presented these false entries to the Petitioner's investigator at the initial interview in April, 1986, and thereby misled the investigator with respect to whether minimum procedures were performed on Ms. Lichtenstein and Dr. Pfab. The recording of these false entries, a material misstatement of fact intended to mislead and deceive others, constitutes a violation of section 463.016(1)(g), Fla. Stat., as fraud and deceit, and as misconduct in the practice of optometry.
By causing false entries as to the results of the minimum procedures for visual analysis to be recorded in the patient records of Ms. Lichtenstein and Dr. Pfab, and by not causing entries to be made reflecting the nonperformance of the minimum procedures, Dr. Stoneburner also violated section 463.016(1)(k), Fla. Stat., by failing to keep a written optometric record about
the examination for patients, and violated rule 21Q-3.007(1), Fla. Admin. Code, which requires that the minimum procedures for visual analysis shall be recorded on the patient's case record. In fact these minimum procedures were not performed. The fact of nonperformance should have been accurately recorded in the patient records, but was not.
Dr. Stoneburner also did not perform tonometry testing on Dr. Pfab. Dr. Stoneburner testified during the hearing that the reason he did not perform tonometry at that time was because Dr. Pfab wore hard contact lenses, and that he needed her records to be able to establish a base point for the test. Dr. Stoneburner noted in Dr. Pfab's record that he would perform the tonometry test on Dr. Pfab's next visit, and noted that he advised her to bring her records. (In fact, he did not advise her of his intent.) Rule 21Q-3.007 has an exception:
If, because of the patient's age or physical limitations, one or more of the procedures specified herein or any part thereof, cannot be performed, the reason for same shall be noted on the patient's case record.
Strictly speaking, Dr. Stoneburner did not record the "reason" that he could not perform tonometry on Dr. Pfab, in that he did not state that he could not perform the test because she wore hard contact lenses and needed her records. He did at least record the intent to do the test later and the intent to obtain her records, although he failed to tell Dr. Pfab of his intent. Dr. Stoneburner's explanation of the "reason" at the hearing was not rebutted by any other expert opinion, and must be accepted as a legitimate reason.
Thus, this violation is relatively technical and insignificant. The violation consists of failing to imperfectly record the reason for not performing tonometry upon Dr. Pfab.
As a result of the foregoing, the Petitioner has proved by clear and convincing evidence all three counts of the administrative complaint.
Section 463.016(2), Fla. Stat., provides:
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:
Refusal to certify to the
department an application for licensure.
Revocation or suspension of a license.
Imposition of an administrative
fine not to exceed $5,000 for each count or separate offense
Issuance of a reprimand.
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.
At the time the violations in this case were committed, the Petitioner did not have a rule setting forth standards for penalties. On February 24, 1987, it adopted rule 21Q-15.001 through 15.007, Fla. Admin. Code. The statutory range of penalties has not changed, and the selected penalty within the range is normally within the Petitioner's sound discretion. It would therefore appear to be reasonable to use the new penalty guidelines in this case, since the alternative is to select a penalty without guidelines.
Since the violations in this case all involved the diagnosis of two patients, but is a first offense of failure to perform or record minimum procedures, the violations are all "minor patient care violations." Rules 21Q- 15.002(4) and 212Q- 15.006(1)(b), Fla. Admin. Code.
The range of penalties for a first minor patient care violation is an administrative fine of not less than $750 nor more than $2,500 per count or offense and, if appropriate, a period of probation of not less than 6 months nor more than 12 months. Rule 21Q-15.004(1)(a), Fla. Admin. Code.
Rule 21Q-15.007 provides aggravating and mitigating factors. The only factor therein that has been proven on this record, and not otherwise accounted for in the designation of the minor patient care offense classification, is subparagraph (e) of the rule, the number of times that the licensee has been previously disciplined by the board. Dr. Stoneburner has had one prior instance of discipline, but it did not involve patient care and was an uncontested case. This prior violation should have some, but not substantial, bearing upon the total penalty.
An administrative fine of $1,000 is an appropriate monetary penalty for count one since three minimum procedures were omitted. Likewise, an administrative fine of $1,000 is appropriate for count two. Count three is more serious, because it involves intentional falsification of patient records. An administrative fine of $2,000 is appropriate, if not lenient, for count three. Additionally, probation for 12 months would be an appropriate penalty in this case.
For these reasons, it is recommended that the Department of Professional Regulation, Board of Optometry, enter its final order finding that Jon F. Stoneburner, O.D., committed the violations alleged in counts one, two, and three, of the administrative complaint, and imposing an administrative fine of
$4,000 and probation, upon such conditions as the Board may direct, for 12 months.
DONE and ENTERED this 24th of October, 1988, in Tallahassee, Florida.
WILLIAM C. SHERRILL, JR.
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 24th day of October, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4103
The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Statements of fact in this appendix are hereby adopted as additional findings of fact in this recommended order.
Findings of fact proposed by the Petitioner:
None.
Findings of fact proposed by the Respondent:
1-2. These proposed findings of fact are not supported by the record. Dr. Pfab was not tendered as an expert consultant or investigator, but as an expert in the practice of optometry. T. 12, 16. The Hearing Officer's initial ruling to exclude Dr. Pfab's testimony was limited to her role as an investigator, not as an expert as tendered; Dr. Pfab was at all times in this case accepted as an expert as tendered. T. 17-18. The Hearing Officer subsequently determined that this initial ruling, a ruling that precluded testimony, but was not based upon lack of expertise, was in error since the employment rule of the Petitioner was not intended to preclude testimony in a hearing.
Rejected as explained in findings of fact 3-5, 17-18, 33, and 54.
It appears from the record that in the March 16, 1986, statement, Dr. Pfab stated that a pupillary test was not obviously done, and visual testing was not done. T. 32-33. Since some "visual testing" was in fact done, it is inferred by the wording of the question that "visual testing" here means visual fields testing. The records clearly indicate that tonometry was not performed on Dr. Pfab. Thus, the only relevant question is whether Dr. Pfab omitted the extra ocular muscle balance test in her March 16, 1986, statement, and if she did, whether her credibility was impaired. The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. Thus, the context of her statement is unknown. Absent some further evidence as to the context and circumstances surrounding the making of the March 16, 1986, statement, a finding of a lack of credibility of Dr. Pfab cannot be made based upon the foregoing, particularly in light of her credible demeanor during cross examination.
The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. There is no other evidence in the record as to Dr. Pfab's characterization of the lack of performance of the pupillary examination on either herself or upon Ms. Lichtenstein in the March 16, 1986, statement in this record. Thus, a finding of "great discrepancy" between that statement and testimony with respect to the pupillary exam is not supported by the record evidence. There was some cross examination concerning Dr. Pfab's statement in her November 8, 1985, report (also which is not in evidence) that the pupillary exam was "not obviously done," but that had nothing to do with the March 16, 1986, statement. Moreover, Dr. Pfab credibly explained that a pupillary exam, when performed, would be obvious. T2. 36.
This proposed finding of fact is not supported by the evidence of record. The proposed finding of fact fails to identify the nature of the "major differences," or to cite to the record.
The observations of Ms. Lichtenstein were observations to which any competent lay witness could testify, and added credence to the testimony of Dr. Pfab.
This proposed finding of fact is irrelevant since Ms. Leff was simply presented with Dr. Stoneburner's false records. Her conclusion is limited to her conversations with Dr. Stoneburner on April 9, 1986. R. Ex. 1; T 65-74.
14, 16-19, 21, 22, 25, 26. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.
20. Dr. Kantor's testimony was too vague to constitute a contradiction of Dr. Pfab's testimony. Dr. Kantor only described bits and pieces of the minimum tests that might be used. He never explicitly described or defined an adequate test. For example, he acknowledged that a pupillary examination might involve consensual light reflex and direct light reflex, R. Ex. 2, p. 7, but failed to explain how consensual light reflex might be tested with a slit lamp. Dr. Pfab, on the other hand, testified that swinging the slit lamp back and forth would be very awkward, very obvious, and was not done by Dr. Stoneburner.
23. Dr. Shewmaker's description of the pupillary examination, and the movement needed if the biomicroscope was used, was essentially the same as Dr. Pfab's. T. 117, 122, 123. Dr. Shewmaker's description of the movements needed to perform the procedure and need for communication in the visual fields test was essentially the same as Dr. Pfab's. T. 117, 124. Dr, Shewmaker's description of the cover test was essentially the same as Dr. Pfab's. T. 125. To the extent that Dr. Shewmaker testified that a cover test can be done during a visual acuity test, that opinion, having not been explained, is rejected in favor of Dr. Pfab's explanation to the contrary. T. 24-25, 34- 35. Thus, Dr. Shewmaker is not found to be a "more credible witness" than Dr. Pfab. A comparison to Ms. Lichtenstein is irrelevant.
Ms. Johnson's description of the pupillary examination was incomplete, and thus it cannot be concluded from her testimony that she observed a minimally adequate pupillary examination. T. 140. Ms. Johnson could not testify that a visual fields test was in fact performed. T. 140-41. Ms. Johnson testified that Dr. Stoneburner performed the extra ocular muscle balance test upon Ms.
Lichtenstein using the Phoropter, T. 142, but there is no credible evidence in the record to sustain a finding that an adequate extra ocular muscle balance test can be performed with a Phoropter. Ms. Johnson was not qualified as an expert to express an opinion as to what the minimum requirements are.
This proposed finding of fact is true, since that is Dr. Stonburner's testimony, but further findings of fact have not been made from the testimony due to clear and convincing evidence to the contrary.
The records from which this proposed finding of fact must be made were not identified by competent evidence as including a record of examination by another doctor; the only indication come from the assertions of counsel, and there is no stipulation of fact in the record precisely explaining the nature of the records. R. Ex. 2, p. 12, lines 6-7, p. 18, lines 5-7. Moreover, the testimony indicates that the witness performing the record comparison was too unfamiliar with the forms to develop a credible opinion. R. Ex. 2, pp. 12-15, 18-20, especially p. 12, lines 23-24 and p. 20, lines 13-17.
This proposed finding of fact is actually a conclusion of law, and has been rejected for the reasons stated throughout this recommended order.
The second half of this sentence is rejected as contrary to the clear and convincing evidence of record.
32, 33 and 35. These proposed findings of fact have been rejected as contrary to the clear and convincing evidence of record.
34. The Respondent did not keep a written record of the failure to perform the three minimum tests upon Ms. Lichtenstein and Dr. Pfab.
COPIES FURNISHED:
Thomas W. Stahl, Esquire Phillip Miller, Esquire Newell & Stahl, P.A.
817 North Gadsden Street Tallahassee, Florida 32303-6313
Robert J. Elkins, Esquire
46 North Washington Street, Suite 12 Sarasota, Florida 33577
Mildred Gardner, Executive Director Board of Optometry
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Bruce Lamb, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
================================================================= AGENCY ORDER REJECTING MOTION FOR REHEARING
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF OPTOMETRY
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY,
Petitioner,
vs. CASE NO. 86-4103
JON F. STONEBURNER, O.D.,
Respondent.
/
ORDER
THIS MATTER came before the Board of Optometry on Respondent's Motion for Rehearing at the Board's meeting of July 26, 1989 in Orlando, Florida. Both parties appeared through counsel to present arguments on the motion.
The Board having considered Respondent's motion and being fully advised on the premises hereby finds that:
Respondent received appropriate and timely notice of the Board's consideration of Respondent's original Motion for Stay Pending Review; and
The Board considered and denied Respondent's original Motion for Stay Pending Review; and
Respondent resubmitted his Motion for Stay Pending Review to the District Court of Appeal which subsequently considered and denied said motion; and
Respondent has not presented any new evidence or argued any procedural mistake.
WHEREFORE, it is the ruling of this Board that this matter is properly within the jurisdiction of the District Court of Appeals and declines to inject itself into the proceedings of the District Court of Appeals. The Motion For Rehearing is REJECTED.
DONE AND ORDERED this 11th day of October, 1989.
BOARD OF OPTOMETRY
JON S. JACOBS, O.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished to Jon F. Stoneburner, O.D., c/o Gary J. Anton, Esquire, Post Office Box 11059, Tallahassee, Florida 32302, by U.S. Mail this 16th day of October, 1989.
| Issue Date | Proceedings |
|---|---|
| Oct. 24, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 1988 | Recommended Order | Failure to perform or record vision analysis, recording false results andmisleading officials concerning compliance with Rules constitutes misconduct. |
