STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4484

)

MARK N. DOBIN, O.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 June 15, 1987, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Phillip B. Miller, Esquire

Robert D. Newell, Jr., Esquire

102 South Monroe Street Tallahassee, Florida 32301

For Respondent: Mark N. Dobin, pro se

7384 West Atlantic Boulevard Margate, Florida 33063

PRELIMINARY STATEMENT

By administrative complaint dated August 26, 1986, Petitioner charged Respondent, a licensed optometrist, with violating various provisions of Chapter 463, Florida Statutes. The essence of the charges are that Respondent failed to perform or record a visual analysis on two patients which complied with the minimum procedures prescribed by law, that Respondent exercised influence on patients to exploit them for financial gain, and that Respondent entered into an agreement with Eye-Wear Glasses, Inc., which adversely affected his exercise of free, independent and unlimited professional judgment and responsi- bility.

At hearing, Petitioner called as witnesses: Mary C. Pfab, Alison Lichtenstein, John C. Danner, and David W. Chambers. Petitioner's exhibits 1-6 were received into evidence. Respondent testified on his own behalf, and called Jeffrey A. Hirsch and Richard M. Mandel as witnesses. Respondent's exhibits 2-4 were received into evidence.

The transcript of hearing was filed July 6, 1987, and the parties were granted leave until July 16, 1987, to file proposed findings of fact and conclusions of law. Petitioner filed proposed findings in a timely manner, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Mark N. Dobin (Dobin), was at all times material hereto licensed to practice optometry in the State of Florida, and held license number OP 0001202.

   
   

   Inadequate Eye Examinations

   
   

2. On November 5, 1985, Alison Lichtenstein, an investigator employed by the Department of Professional Regulation (DPR), entered Dobin's offices in Margate, Florida. Using the assumed name of Alison Smith, Ms. Lichtenstein, who was wearing glasses at the time, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00.

   
   

3. The visual analysis performed by Dobin on Ms. Lichtenstein failed to include the following minimum proceduresrequired by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire whether Lichtenstein was taking any medication; (b) an external examination; (c) a pupillary examination; (d) visual field testing; and (e) a biomicroscopy.

   
   

4. On November 5, 1985, Mary Pfab, a licensed optometrist in the State of Florida, entered Dobin's offices in Margate, Florida. Using the assumed name of Mary Parker, Ms. Pfab, who was wearing contact lenses, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00.

   
   

5. The visual analysis performed by Dobin on Ms. Pfab failed to include the following minimum procedures required by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire of Pfab's personal medical history, her medications, her family medical history, or her family ocular history; (b) a pupillary examination; and (c) visual field testing.

   
   

6. An optometrist's failure to perform the minimum procedures required by Rule 21Q-3.007, Florida Administrative Code, can have a profound impact on the results of his examination. Pertinent to this case, the procedures omitted by Dobin were of import because:

   
   

   1. Many medications mask the symptoms of a number of eye diseases. A failure to ascertain what medications a patient is taking could, therefore, result in the optometrist missing or not checking for certain diseases.

      
      

   2. A personal medical history is likewise important to an informed examination. Pre-existing injuries and diseases can have a profound impact on an optometrist's findings, and the cause of that finding is important too the ultimate diagnosis and treatment of the patient.

      
      

   3. The patient's family medical and ocular history is also important to an informed examination. For example, a person with a family history of diabetes, cataracts or glaucoma is more likely to have such disease than one without such family history. Consequently, if alerted by such information, the optometrist could diagnose the presence of such disease and prescribe treatment at a much earlier stage of its development than might ordinarily be the case.

   4. A pupillary examination evaluates the nervous system which connects the eye and retina to the brain. A failure to perform such examination could cause the optometrist to overlook the existence of a brain tumor or other forms of nerve damage.

      
      

   5. Visual field testing is a diagnostic tool used to detect the presence of gross nerve damage, traumatic cataracts, glaucoma, diabetes, and certain peripheral retinal diseases. Absent such test, these diseases might not be detected. In this case, the import of Dobin's failure to perform a visual field test was heightened. Visual field testing and tonometry are two of the three diagnostic procedures utilized to detect glaucoma. Where, as here, tonometry was not performed, the importance of visual field testing is more significant to the early detection of that disease.

      
      

   6. Biomicroscopy is a diagnostic tool used to detect the presence of bacterial conjunctivitis, corneal ulcers, corneal scars, blepharitis, and some lid injuries. Absent stich test, these diseases or injuries might not be detected.

      
      

   7. An external examination is important to the detection of skin cancer, skin lesions, blepharitis, and bacterial or allergic conjunctivitis. Absent such examination, these ocular problems might be overlooked.

      
      

      Inadequate Patient Records

      
      

7. Contrary to the requirement of Rule 2IQ-3.007, Florida Administrative Code, the patient case record for Ms. Lichtenstein and Ms. Pfab did not reflect whether the following tests were performed or if performed the results: (a) a complete patient history, (b) an external examination, (c) a pupillary examination, (d) a visual field test, (e) an internal examina- tion, (f) a biomicroscopy, and (g) diagnosis and treatment.

   
   

8. The inadequacy of Dobin's patient records would adversely affect his ability, and that of a subsequent treating optometrist, in treating these patients. Absent a medical history and the results of the tests performed, an optometrist is severely hampered in his ability to track the progress of diseases, or to detect their onset.

   
   

   Exercising Influence For Financial Gain

   
   

9. Petitioner asserts that Dobin, by accepting a fee for a vision analysis that did not comply with the minimum requirements of Rule 2IQ-3.007(1), Florida Administrative Code, violated Section 463.0l6(1)(m), Florida Statutes. That section prohibits:

   
   

   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.

   
   

10. Petitioner's proof was not persuasive. While the patients in this case may not have received the minimum examination mandated by law, I am not persuaded that such failure constituted the exercise of influence to exploit a patient contemplated by Section 463.016(1)(m). There was no showing that Dobin recommended unnecessary tests or unnecessary products, or that he otherwise sought to influence their choice of procedures or materials for financial gain.

    Such being the proof, the Petitioner failed to demonstrate a violation of Section 463.016(1)(m)

    
    

    Unlicensed Practice Of Optometry

    
    

11. Petitioner further asserts that Dobin's "association" with Eye-Wear Glasses, Inc., his landlord, violated the provisions of Section 463.0l4(1)(c), Florida Statutes, and Rule 2IQ-3.008, Florida Administrative Code. Section 463.014(1) provides:

    
    

    (c) No optometrist shall engage in the practice of optometry with any organization, corporation, group, or lay individual. This provision shall not prohibit optometrists from employing, or from forming partnerships or professional associations with, optometrists licensed in this state.

    
    

    And, pertinent to this case, Rule 2IQ-3.008 provides:

    
    

    No licensed practitioner shall enter

    into any agreement which adversely affects the licensed practitioner's exercise of free, independent and unlimited professional judgment and responsibility, or which permits any unlicensed person or entity to practice optometry through the licensed practitioner by controlling and/or offering `optometric services to the public. The professional judgment of a licensed practitioner should be exercised solely for the benefit of his patients and free from any compromising influences and loyalties.

    
    

    1. The Board will consider the circumstances of the practice including but not limited to, the following factors in determining whether a violation of Section 463.014, F.S., has occurred:

       1. Whether the licensed practitioner holds himself out to the public as available to render professional services in any manner which implies that the licensed practitioner is professionally associated with or employed by an entity which itself is not a licensed practitioner. For purposes of this rule "entity" shall refer to any corporation, lay body, organization, individual or commercial or mercantile establishment which is not a licensed practitioner. The term "commercial or mercantile establishment" shall include, but not be limited to, an establishment in which the practice of opticianry is conducted pursuant to Chapter 484.

       2. Whether the professional office space occupied by the licensed practitioner is such that it does not clearly and sufficiently

          indicate to the public that his practice of optometry is independent of, and not associated with the entity.

       3. Whether the licensed practitiQner has a telephone listing and number that is separate and distinct from that of the entity or whether the phone is answered in a manner that does not identify his optometric practice or whether the telephone is answered in a way that indicates that the licensed practitioner is professionally associated with or employed by the entity.

       4. Whether the entrance to the building or commercial or mercantile area in which the licensed practitioner's practice is located sufficiently identifies that the licensed practitioner is practicing his profession independent of, and not associated with the entity.

       5. Whether advertisements, including those placed in a newspaper and/or telephone directory, imply that the licensed practitioner is professionally associated with, or employed by an entity.

       6. Whether the licensed practitioner maintains full and total responsibility and control of all files and records relating to patients and the optometric practice, in accordance with Rule 2IQ-3.003.

       7. Whether the licensed practitioner has full and complete control and discretion over fees charged to patients for his services and billing methods.

       8. Whether the provisions of a lease or space agreement between the licensed practitioner and the entity operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility.

       9. Whether the arrangements for the furnishing of equipment or supplies to the licensed practitioner operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility.

    
    

12. Eye-Wear Glasses, Inc., is owned and operated by two licensed opticians. By a "rental agreement" dated October 12, 1983, Eye-Wear Glasses, Inc., and Dobin entered into an agreement whereby Dobin was sublet space within Eye-Wear Glasses' premises. That "rental agreement" provided:

    
    

    RENTAL AGREEMENT BETWEEN EYEWEAR GLASSES INC. AND DR. MARK N. DOBIN

    
    

    1. Rent shall be $1.00 per month, and shall continue for a 2 year period with continuing

       2 year options. This lease will go into

       affect on October 17th 1983.

       1. The rent of $1.00 per month shall include water, electricity, and air conditioning.

       2. Dr. Mark N. Dobin will be responsible to supply all equipment, stationary, and

          supplies needed to run an Optometric Office.

       3. Dr. Mark N. Dobin will have a phone installed at his own expense and his monthly

          bill along with Yellow Pages advertising c shall be paid by him.

       4. Dr. Mark N. Dobin will be allowed to advertise independent of Eyewear Glasses Inc. at his own expense.

       5. A key allowing access to the premises shall be given to Dr. Mark N. Dobin.

    2. Fees for Services performed by Dr. Mark

       N. Dobin, will be determined by Dr. Mark N. Dobin and shall be collected independent of those fees from Eyewear Glasses.

    3. Being a private entity, Dr. Mark N. Dobin shall have the right to determine his own office hours, days worked and vacation time, but he shall try to coordinate these days

       with those of Eyewear Glasses Inc. if this is possible.

    4. Renter, Dr. Mark N. Dobin, has the option of selling his practice and its contents to another Eye Doctor. This sale may include

       all records and files of patients belonging to Dr. Mark N. Dobin. At the time of sale, Eyewear Glasses Inc. has the right to renegotiate the lease, but not to alter it in such a way as to make the sale of the practice uninviting. Before the sale is finalized a 3 month trial period may be requested by either party.

       1. If Dr. Mark N. Dobin is unable to sell his practice, Eyewear Glasses Inc. has the right of first refusal to purchase his practice or his equipment. If the office is unoccupied for a period of 30 days, Eyewear Glasses Inc. has the option of subleasing the practice to another Eye Doctor, until which time the practice is sold or Dr. Mark N. Dobin returns.

    5. Dr. Mark N. Dobin has the right to hire another Eye Doctor to work his office during vacation time, or other times when he is not available. If Eyewear Glasses Inc. is not happy with the performance of said Eye

       Doctor. it may request that another Doctor be hired by Dr. Mark N. Dobin, but the final decision shall be his.

    6. Dr. Mark N. Dobin has the right to hire c an employee at his own expense, to assist in his office. A key to the premises may be

       given to said employee, but permission must

       first be granted by Eyewear Glasses inc.

    7. If either partner of Eyewear Glasses Inc. decides to sell his share of the corporation

       to the other, all points of this lease agreement shall remain in affect.

       1. If both owners agree to sell their share of the corporation, Dr. Mark N. Dobin shall have the right of first refusal to purchase Eyewear Glasses Inc. and its contents.

    8. Eyewear Glasses Inc. agrees to build a partition at its own expense in order to meet Florida State Optometric Board requirements.

    9. A Covenant of Restriction with a radius of 5 miles shall go into affect 2 years from the beginning of this lease, and shall last for a period of 3 years from the termination of this lease.

    10. Dr. Mark N. Dobin shall not sell eyeglasses or other optical excessories, excluding all items pertaining to the sale and dispensing of contact lenses.

    
    

13. The space occupied by Dobin, which consisted of approximately 248 square feet, was located at the rear of the optician's store, and accessible by way of a sliding glass door from the store or through a back glass door from the shopping mall area. Consequently, customers of either business had an unrestricted view and access to the business of either profession.

    
    

14. Considering the physical layout of the premises, as well as the view of the premises afforded by Petitioner's exhibit 5, the proof established that Dobin held himself out to the public in a manner that implied he was professionally associated with or employed by Eye-Wear Glasses, Inc. Indeed, the "rental agreement" itself depicts a business association more far reaching than that of landlord and tenant, and served to impair Dobin's exercise of free, independent, and unlimited professional judgment and responsibility. 1/

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Pertinent to this case, Section 463.016(I), Florida Statutes, specifies that the following acts shall constitute grounds for which disciplinary action may be taken:

    
    

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

    
    

17. Rule 2IQ-3.007(1), Florida Administrative Code, provides:

    
    

    An examination for vision analysis shall include the following minimum procedures which shall be recorded on the patient's case record:

    1. Patient's history (personal and family medical history, personal and family ocular Y history, and chief complaint);

       * * *

       1. External examination;

       2. Pupillary examination;

       3. Visual field testing (confrontation or other);

       4. Internal examination (direct or indirect ophthalmoscopy recording cup disc ratio,

          blood vessel status and any abnormalities)

       5. Biomicroscopy (binocular or monocular) ;

          * * *

          1. Diagnosis and treatment plan.

       
       

18. The proof established that Dobin committed acts within the purview of Section 463.0l6(1)(h), Florida Statutes, by c failing to perform on the patient, and record on the patient's case record, the minimum procedures prescribed by Rule 2IQ- 3.007(1), Florida Administrative Code.

    
    

19. The proof further establishes that Dobin, contrary to the provisions of Sections 463.014(1)(c) and 463.016(I)(h), Florida Statutes, engaged in the practice of optometry with a corporation. The proof failed, however, to demonstrate that Dobin exercised influence on a patient for financial gain contrary to the provisions of Section 463.016(1)(m), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOM)MENDED that Respondent, Mark N. Dobin, be placed on probation for

twelve (12) months, and that an administrative fine of $3,000 be imposed upon him.

DONE AND ORDERED this 24th day of July, 1987, in Tallahassee, Leon County, 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 24th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4484

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

26. Addressed in paragraphs 9-10. 27-31. Addressed in paragraphs 11-13.

COPIES FURNISHED:

Phillip B. Miller, Esquire c Robert D. Newell, Jr., Esquire

102 South Monroe Street Tallahassee, Florida 32301

Mark N. Dobin

7384 West Atlantic Boulevard Margate, Florida 33063

Mildred Gardner, Executive Director Board of Optometry

130 North Monroe Street Tallahassee, Florida 32399-0750

Honorable Van B. Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004484

Orders for Case No: 86-004484