Judges: JAMES E. BRADWELL
Agency: Department of Health
Latest Update: Nov. 04, 1987
Summary: The issue presented for decision herein is whether or not Respondent engaged in the conduct set forth in the preceeding paragraphs, and, if so, what, if any, disciplinary action is appropriate.Resp failed to meet minimum procedures and to possess minimum equipment in optometry practice. License is suspended & administrative fine is assessed.
86-4134.PDFSTATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4134
)
MITCHELL J. MARDER, O.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 26, 1987 in Fort Lauderdale, Florida. The parties were afforded leave through July 15, 1987 to submit memoranda supportive of their respective positions. The parties submitted memoranda and it was considered by me in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of an Appendix to the Recommended Order.
The parties waived the time requirement that a Recommended Order be entered within thirty (30) days following receipt of the transcript.
APPEARANCES
For Petitioner: Robert D. Newell, Jr., Esquire and
Phillip B. Miller, Esquire Attorneys at Law
Robert D. Newell, Jr., P.A.
102 South Monroe Street Tallahassee, Florida 32301
For Respondent: Edward Paul Krieling, Esquire
Rosen, Kreiling and Bornstein, P.A. 6151 Miramar Parkway
Parkway Professional Building Miramar, Florida 33023
INTRODUCTION AND BACKGROUND
By Administrative complaint dated August 26, 1986, Respondent is charged with two counts of violating rule 21Q-3.007, Florida Administrative Code which sets forth the minimum procedures for vision analysis, and violating section 463.016(1)(h), Florida Statutes (1983), which makes violations of rules promulgated pursuant to chapters 455 and 463, Florida Statutes, grounds for disciplinary action. Each of these counts also charged Respondent with violations of section 463.016(1)(k), Florida Statutes, for failing to keep optometric records about the examinations, treatments and prescriptions for patients.
The third count of the Administrative Complaint charged Respondent with failure to possess the minimum equipment required by rule 21Q-3.004, Florida Administrative Code, and section 463.016(1)(h), Florida Statutes.
The final count of the complaint charges Respondent with entering into an agreement which adversely affects his exercise of free, independent and unlimited professional judgment and responsibility in violation of section 463.016(1)(h) and rule 21Q-3.008, Florida Administrative Code. This count also charges Respondent with engaging in the practice of optometry with, and being employed by, persons and entities other than Florida licensed optometrists, in violation of section 463.014(1)(b) and (c), Florida Statutes. Finally, the count charges that Respondent violated section 463.O16(1)(m), Florida Statutes, which provides that exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party is a basis for disciplinary action.
Petitioner called as witnesses Mary Pfab, Allison Lichtenstein, John Danner and David Chambers. Respondent testified on his own behalf.
ISSUE PRESENTED
The issue presented for decision herein is whether or not Respondent engaged in the conduct set forth in the preceeding paragraphs, and, if so, what, if any, disciplinary action is appropriate.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings.
Petitioner is the state agency charged with regulating the practice of optometry pursuant to chapters 455, 463, and 20, Florida Statutes.
The Respondent is licensed to practice optometry in the state of Florida, having been issued license number OP-0001674. Respondent shares office space with Robert's Optical Center at 23 East Prospect Road in Fort Lauderdale.
On or about January 8, 1986, Respondent performed an examination of visual analysis upon DPR's investigator Allison Lichtenstein. Lichtenstein used the alias, Allison Smith.
During the course of the examination of Allison Lichtenstein Respondent failed to perform visual field testing. In addition to Respondent's failure to conduct a visual field test of Lichtenstein, Respondent also failed to perform the following minimum procedures: Pupillary examination, biomicroscopy and extra-ocular muscle balance assessment.
At Lichtenstein's request, Respondent did not perform tonometry.
After the Respondent's examination of Lichtenstein, she paid the examination fee to Robert Mann, an optician with Robert's Optical Center, Inc. Mann provided Lichtenstein with a copy of her prescription written on the Respondent's prescription form. (Petitioner's Exhibit 3). Mann is not a salaried employee of Respondent.
Prior to Respondent's examination of Lichtenstein, Respondent was aware that Mann was writing prescriptions on his prescription pad. Despite this knowledge, Respondent allowed Mann to continue this practice and Respondent continues to allow Mann to collect fees and dispense receipts on his behalf.
On or about January 8, 1986, Respondent performed an examination for visual analysis upon Petitioner's investigator, Mary Pfab. Pfab used the alias, Mary Parker.
Dr. Mary Pfab is licensed to practice optometry in Florida, Tennessee, Virginia and North Carolina. She is currently engaged in the practice of optometry in Virginia. Pfab is familiar with the minimum procedures for vision analysis as required by rule 21Q-3.007, Florida Administrative Code. She was tendered and accepted as an expert witness in the practice of optometry.
At the time of the examination, Pfab was wearing rigid contact lenses. Pfab told Respondent that she was then 28 years old and was taking the medication Ibruprofen.
During Respondent's examination of Pfab, the following minimum procedures for vision analysis were not performed: pupillary examination and visual field testing.
At Pfab's request, tonometry was not performed on her by Respondent.
At the conclusion of Respondent's examination of Pfab, Pfab paid Robert Mann the examination fee. Respondent gave Pfab a copy of her prescription and Mann provided Pfab with a receipt on Respondent's prescription pad. Mann wrote Pfab's prescription on his pad. (Petitioner's Exhibit 2b).
On or about April 2, 1986, Petitioner's investigator, Allison Lichtenstein revisited Respondent's office and conducted an investigation. She found that Respondent did not have a tangent screen, which is necessary to perform visual field testing. Corrective action has subsequently been taken by Respondent, and Respondent has now purchased a tangent screen. Respondent now includes visual field testing in routine eye examinations.
Dr. David Chambers, a Florida licensed optometrist who has been engaged in the practice of Optometry in Florida since 1974, was accepted as an expert witness in the practice of optometry in Florida. Chambers testified as to the consequences which could result to a patient when an optometrist fails to perform the various required minimum procedures.
A pupillary examination detects neurological problems produced by tumors, aneurysms or other diseases, particularly neurosyphilis. An optometrist who does not perform the pupillary examination could miss these problems and patients accordingly will not be referred to a neurologist as they should be.
Visual field testing indicates the integrity of the eye's retina and detects a large family of diseases including glaucoma, pigmentation degeneration, diabetes and cataracts. Failure to performs visual field testing could result in the optometrist's missing these types of diseases which affect the visual system and the controlling nerve systems.
Visual field testing and tonometry are two of the three procedures which detect glaucoma. The importance of performing visual field testing is increased when tonometry is not performed at the patient's request.
Biomicroscopy detects lid and corneal diseases including allergic conjunctivitis, bacterial conjunctivitis, herpes, chlazions and aureola. These lid and corneal diseases could not be detected, diagnosed and/or referred for treatment by an optometrist who fails to perform biomicroscopy.
The extraocular muscle balance assessment determines how well the two eyes work together. By failing to perform the extraocular muscle balance assessment, an optometrist could fail to diagnose a phoria or tropia problem. A phoria problem is a tendency for the eye to turn and a tropia problem is an actual turning of the eye. Failure to detect and treat these problems could result in the patient having headaches, seeing double, or using only one eye.
John C. Danner is a real estate appraiser engaged in appraising commercial real estate property since 1975. Danner was received as an expert appraiser in commercial real estate. He is familiar with market rental values of commercial property in the Fort Lauderdale/Broward County area.
Surveys conducted by Danner to determine the market rent for space near the Respondent's office reveal that the market rent for similar space is between $90 to $100 per month. Additionally, it would cost an optometrist between $300 to $400 per month to lease the type of equipment which has been provided by Robert's Optical to Respondent. Robert's Optical provides Respondent with both his office space and equipment for $50 per month.
By the inducement of paying only nominal rent for office space and equipment, Respondent has engaged in the practice of optometry with Robert's Optical Center, Inc.
Respondent does not maintain full and total responsibility and control of all files and records relating to patients. Rather, an optician with Robert's Optical Center provides patients with prescriptions written on the Respondent's prescription forms, and Respondent's patients pay their examination fees to an optician affiliated with Robert's Optical.
Respondent charged Lichtenstein $25 for an "eye exam" (Petitioner's Exhibit 3) and charged Pfab $35 for a "contact lens exam" (Petitioner's Exhibit 2b). These examinations were not complete in that a number of the required minimum procedures were omitted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 463, Florida Statutes.
Section 463.016(2), Florida Statutes, authorizes the Board of Optometry to discipline a licensee for violations of section 463.016(1), Florida Statutes.
Respondent, in his examination for visual analysis on Allison Lichtenstein, a/k/a Allison Smith, failed to perform the minimum procedures, to wit, pupillary examination, visual field testing, biomicroscopy and extraocular muscle balance assessment. Respondent thereby violated the provisions of rule 21Q-3.007, Florida Administrative Code, which establishes the minimum procedures for vision analysis; and section 463.016(1)(h), Florida Statutes, which provides that a violation of any rule promulgated pursuant to Chapters 463 or 455, Florida Statutes, is a basis for disciplinary action against a licensee.
Respondent, in his visual analysis examination on Pfab, failed to perform minimum procedures, to wit, pupillary examination and visual field testing. Respondent thereby violated the provisions of rule 21Q-3.007, Florida Administrative Code. By engaging in conduct violative of such rule, Respondent engaged in conduct in contravention of section 463.016(1)(h), Florida Statutes.
On January 8 and April 2, 1986, Respondent did not possess the minimum equipment required to practice optometry, to wit, visual field testing equipment; and thereby violated the provisions of rule 21Q-3.004, Florida Administrative Code. By so doing, Respondent engaged in conduct contrary to provisions of section 463.016(1)(h), Florida Statutes.
Based on the Respondent's business relationship with Robert's Optical Centers Inc., including the Respondent's lease agreement, and the fact that the optical store collects the Respondent's fees and distributes prescriptions to his patients, Respondent has engaged in the practice of optometry with the business entity, Robert's Optical Center, Inc., in violation of section 463.014(1)(c), Florida Statutes and derivatively violated section 463.016(1)(h), Florida Statutes.
Respondent, by charging his patients for eye examinations that were not complete, exercised influence on his patients in such a manner as to exploit the patients for his own financial gain in violation of section 463.016(1)(m), Florida Statutes.
Based on Respondent's repeated violations of Chapter 463, Florida Statutes, and rules promulgated pursuant to Chapter 463, Florida Statutes, as found hereinabove, Respondent has thereby engaged in conduct contrary to section 463.016(1)(h), Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
Respondent's license to practice optometry be suspended for three (3) months, and upon the conclusion of the suspension Respondent be placed on probation for a period of twelve (12) months under such terms and conditions as required by the Board of Optometry.
An administrative fine be imposed upon Respondent in the amount of twenty-five hundred dollars ($2,500) payable to Petitioner within thirty (30) days after the entry of the Petitioner's Final Order.
DONE and ORDERED this 4th day of November, 1987, in Tallahassee, Florida.
JAMES E. BRADWELL
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 4th day of November, 1987.
COPIES FURNISHED:
Robert Newell, Jr., Esquire Phillip B. Miller, Esquire
102 South Monroe Street Tallahassee, Florida 32301
Edward Paul Kreiling, Esquire Parkway Professional Building 6151 Miramar Parkway
Miramar Florida 33023
Tom Gallagher, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
William O'Neil General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Mildred Gardner Executive Director
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 86-004134
Orders for Case No: 86-004134
| Issue Date |
Document |
Summary |
|
Sep. 08, 1988 |
Agency Final Order
|
|
|
Nov. 04, 1987 |
Recommended Order
|
Resp failed to meet minimum procedures and to possess minimum equipment in optometry practice. License is suspended & administrative fine is assessed.
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