STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4902

)

JACK L. HARGRAVES, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing was held in this case on December 1, 1987 in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Jack M. Larkin, Esquire

806 Jackson Street

Tampa, Florida 33602

For Respondent: Jack L. Hargraves, pro se

1211 South Dale Mabry Tampa, Florida 33629

The Department of Professional Regulation (Petitioner) has filed an Administrative Complaint before the Board of Optometry alleging that Jack L. Hargraves (Respondent) violated certain provisions of Section 463.016(1), Florida Statutes and Rule 21Q-3.07, Florida Administrative Code, in examining and fitting his patient, Clara Piskura, for soft contact lenses, as well as the records he kept in connection therewith in January, 1986. At the hearing, Petitioner called three witnesses and introduced two exhibits. Respondent testified on his own behalf and also introduced two exhibits. The transcript of the hearing was filed on December 14, 1987, and the parties were thereafter allowed to file post-hearing proposed recommended orders. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. At all times material hereto, Respondent was a licensed optometrist in the State of Florida, having been issued license number OP-0000437.

   
   

2. On or about January 4, 1986, Clara Piskura was examined and fitted by Respondent for soft contact lenses. She had worn hard contact lenses for approximately 15 years. Respondent issued soft contact lenses to Piskura on January 4, 1986, but she immediately informed him she could not see well with the soft contact lenses. She subsequently reported headaches and a continuing inability to see.

3. On or about January 8 and 18, 1986 Piskura had follow-up visits with Respondent, but when she went to Respondent's office on January 27, 1986, he refused to examine her. Her headaches and inability to see were not corrected in these follow-up visits.

   
   

4. Piskura returned the soft contact lenses to Respondent, and received a

   50 percent refund of the $110.00 she paid for the soft contact lenses, pursuant to an Agreement she signed on January 4, 1986.

   
   

5. According to John Walesby, O.D., who was accepted as an expert in optometry, Respondent failed to keep acceptable minimum optometric records relating to his patient, Clara Piskura. He did not record a patient history or chief complaint, an internal or external examination of the patient, or a visual field testing in an acceptable manner. There is no recording of pupillary examination, or biomicrososcopy (monocular or binocular). Based upon his failure to keep adequate patient records which would meet minimum optometric standards, Respondent's examination and treatment of Piskura was negligent or incompetent in that it was incomplete, and did not allow anyone reviewing the records to interput or understand those records or the patient's condition. However, the evidence does not establish that Respondent's actions constituted misconduct in his profession or gross malpractice.

   
   

6. Respondent testified that he conducted a complete and thorough exam of Piskura, but his records do not document or confirm his testimony, or otherwise explain his use of check-marks in his patient records.

   
   

7. Respondent has been licensed, and has practiced in the State of Florida, for over 30 years and has never been the subject of license disciplinary action prior to this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. Petitioner has the burden of proving the alleged violations in this proceeding by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. Sections 463.016(1)(g) and (k), Florida Statutes, authorize Petitioner to take disciplinary action against any licensee who is negligent or incompetent in the practice of his profession, or who fails to keep written optometric records about the examinations, treatments and prescriptions for patients.

   Clear and convincing evidence was presented that Respondent's records concerning Clara Piskura were deficient and did not meet minimum standards of the profession, and that his treatment of Piskura, based upon such deficient records, was negligent or incompetent. There is no record of required tests and examinations, or of action taken by Respondent to address Piskura's repeated complaints about poor vision and headaches with the soft contact lenses. It has, therefore, been established that Respondent is in violation of these statutory provisions.

   
   

10. Concerning the penalty to be imposed in this case, the length of time which Respondent has been licensed and practiced in this State without prior disciplinary action, as well as the fact that this matter involves only one patient and actions occurring only in January, 1986, should be considered.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Board of Optometry enter a Final Order finding Respondent in violation of Sections 463.016(1)(g) and (k), Florida Statutes, and placing his license on probation for a period of

3 months, conditioned upon his successful completion of 6 hours of continuing optometric education in addition to the hours regularly required to maintain his license and the payment of a $500 administrative fine.

DONE AND ENTERED this 7th day of January, 1988, in Tallahassee, Florida.

DONALD D. CONN

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 7th day of January, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4902

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Rejected as unnecessary and irrelevant. 3-4. Adopted in Finding of Fact 2.

1. Adopted in Finding of Fact 3.

2. Adopted in Finding of Fact 4.

7-14. Adopted in Finding of Fact 5.

15-16. Rejected as unnecessary and cumulative.

Respondent did not file Proposed Findings of Fact upon which explicit findings could be made.

COPIES FURNISHED:

Jack M. Larkin, Esquire 806 Jackson Street

Tampa, Florida 33602

Jack L. Hargraves 1211 South Dale Mabry Tampa, Florida 33629

Mildred Gardner Executive Director Board of Optometry

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

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF OPTOMETRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NO.: 0070869

vs. DOAH CASE NO.: 86-4902

JACK L. HARGRAVES, O. D.,

Respondent

/

FINAL ORDER

THIS MATTER came before the Board of Optometry pursuant to Section 120.57(1)(b)9., Florida Statutes, on February 12, 1988, in Tampa, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the Hearing Officer in the case of Department of Professional Regulation vs. Jack L. Hargraves, O. D., DOAH Case No. 86-4902. The Petitioner was represented by Charles Tunnicliff, Esquire.

The Respondent was present but was not represented by legal counsel.

Upon consideration of the Hearing Officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings.

FINDINGS OF FACT

1. The Hearing Officer's findings of fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 463, Florida Statutes.

   
   

2. The Hearing Officer's conclusions of law, are hereby approved and adopted in toto.

   
   

3. Based upon the Findings of Fact stated above, the Board concludes that Respondent has violated Section 463.016(1)(g) and (k), Florida Statutes.

   
   

4. After a review of the complete record, the Board has determined the Hearing Officer's recommendation with regard to penalty should be modified to reflect the degree of mitigating factors put forth by the Respondent and therefore, the Board hereby modifies the recommendation of the Hearing Officer.

   
   

5. There is competent substantial evidence support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED;

That the Respondent has violated 463.016(1)(g) and (k), Florida Statutes, and his license shall be placed on probation for a period of three months, conditioned upon his successful completion of six hours of transcript quality continuing education in addition to the continuing education requirements for renewal of his license prior to December, 1988 and payment of a $1000 administrate fine, to be paid to the Department of Professional Regulation Board of Optometry within thirty (30) days of the filing of this Final Order.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one (1) copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one (1) copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 1st day of April, 1988.

Jon S. Jacobs, O. D.

Vice-Chairman, Board of Optometry

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent to Jack L. Hargraves, O. D. at 1211 S. Dale Mabry, Tampa, Florida 33629, on or before 5:00 p.m., by certified United States mail, this 6th day of April, 1988.

Mildred A. Gardner Executive Director Board of Optometry

Docket for Case No: 86-004902

Orders for Case No: 86-004902