STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF HEARING ) AID SPECIALISTS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4171

)

ORDWAY PIEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties in this case by the undersigned on October 9, 1987, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Sarasota, Florida on December 21, 1987. The issue for consideration was whether Respondent's license to dispense hearing aids in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

For Respondent: Ordway F. Piel, pro se

2357 South Tamiami Trail Venice, Florida 33595

BACKGROUND INFORMATION

By Administrative Complaint dated August 7, 1987, Department of Professional Regulation, Petitioner herein, alleges that Respondent violated Section 484.0501, Florida Statutes, thereby violating Section 484.056(1)(h); was guilty of fraud, deceit, negligence, incompetence, or misconduct in the practice of dispensing hearing aids; and dispensed and delivered a product unusable or impractical for the purpose represented by the sale. On August 27, 1987, the Respondent, on an Election of Rights form, disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

Thereafter, on September 17, 1987, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on October 9, 1987, the undersigned, who had received the case on October 2, 1987, set the case for hearing on December 21, 1987.

At the hearing, Petitioner presented the testimony of Lou Pelikan, the individual to whom Respondent sold the hearing aids in question; Barbara Brown

Gaunt, an audiologist and hearing aid specialist and Henry Lee Fowler, also a hearing aid specialist. Petitioner also introduced Petitioner's Exhibits 1 through 6. Petitioner's Exhibit 5, the hearing aids involved herein were left in the custody of counsel for Petitioner.

Respondent testified in his own behalf and introduced Respondent's Exhibits A and B.

Subsequent to the hearing, the undersigned was not furnished a transcript and neither party submitted proposed findings of fact.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, the Respondent, Ordway F. Piel, was licensed as a hearing aid specialist in the State of Florida.

   
   

2. For the past five or six years, Lou Pelikan has worn a hearing aid. In December, 1985, he went into Respondent's office in Venice, Florida to buy batteries for the hearing aid he was then wearing. He got the batteries he needed and made an appointment to be checked for a new hearing aid by the Respondent which Respondent indicated would radically improve his hearing.

   
   

3. When he went back for the test on January 6, 1986, he was seen by Respondent for between 20 and 30 minutes. Respondent did some tests after which he sold Mr. Pelikan two hearing aids which were on sale "that week only." The hearing aids cost $1178.00 plus a $70.00 service policy for the two.

   
   

4. Mr. Pelikan does not know what tests were performed by Respondent. He remembers he was asked certain questions as a part of the test, but does not recall the details of the tests or the results thereof.

   
   

5. After the hearing aids arrived and were installed, Mr. Pelikan experienced no improvement in his hearing because they could not be adjusted properly. Notwithstanding the fact that he took them back 12 or 13 times for adjustment and they were sent back to the factory three times, they were totally unsatisfactory. The left one made his ear sore and he had trouble getting it out. It was also difficult for him to hear through the right hearing aid as well.

   
   

6. After several attempts by Mr. Pelikan to get some satisfaction from Respondent, on May 5, 1986, Respondent ultimately said to him, "I don't give a damned what you do with them, " or words to that effect, turned his back on him, and walked away. At that point, Mrs. Pelikan wrote a letter of complaint to the Department of Professional Regulation which resulted in her husband being sent to another audiologist for hearing aid testing. The tests done by the second audiologist were similar to those done by Respondent.

   
   

7. This second audiologist was Barbara B. Gaunt who examined Mr. Pelikan in April, 1987. She did several tests which included, (a) an air conduction threshold in both ears; (b) a bone conduction threshold in both ears; (c) a speech reception threshold in both ears; (d) a speech discrimination threshold in both ears: (e) an uncomfortable listening level test in both ears; and (f) a most comfortable listening level test in both ears.

   
   

8. From an examination of the audiogram done by the Respondent, (Petitioner Exhibit 3), Ms. Gaunt concluded that the test done by Respondent

   were not proper and complete. When Respondent tested the left ear, for example, the air conductions test reflected a level much higher than that for the bone conduction threshold test and Ms. Gaunt cannot see how this can be possible.

   The bone conduction threshold test conducted by Respondent must have been improper since it fell well below the air conduction threshold test and that sort of response is, based on her experience, impossible. Respondent, on the other hand, contends that this happens with some degree of regularity in one out of every ten or so cases. His testimony was rebutted, however, not only by that of Ms. Gaunt, but also by that of Mr. Fowler, another expert and audiologist.

   
   

9. Based on the documentation which the Department had received from the Respondent, it appeared to Ms. Gaunt that he did not do several of the tests which are required by Florida statutes for inclusion in a comprehensive audiology examination. These include the speech reception threshold test, the speech discrimination threshold test, the uncomfortable listening level test, and the most comfortable listening level test.

   
   

10. In her opinion, the Respondent's practice in this case was not in accord with widely accepted community standards since the absence of these tests is not an accepted practice. Based on her review, she does not see how Respondent could prescribe a proper hearing aid due to the lack of tests which defeats the entire process.

    
    

11. Ms. Gaunt did tests on the two aids Mr. Pelikan bought from the Respondent and also the one he was wearing prior to that purchase. Before conducting her examination, she asked they be fully charged and she charged them again herself. She found that the aids sold by Respondent had a high noise level, an inadequate output, and an inadequate gain as well as a difficulty with the harmonic noise level. At the time, the adjustment screw was hard to manipulate because the controls were stripped on both units.

    
    

12. Ms. Gaunt did additional tests on the two units purchased from Respondent on December 15, 20, and 21, 1987 and her tests show that the right unit is not working properly, reflecting an inadequate gain and output. The left unit, that about which Mr. Pelikan complained, is now working better than the right. It would appear it's difficulty was of an intermittent nature which is very hard to detect and could result from many different sources.

    
    

13. Ms. Gaunt's opinion was substantially confirmed by that of Mr. Fowler who did not examine Mr. Pelikan but who reviewed the documents based on the tests conducted by both Respondent and Ms. Gaunt. He determined Respondent did not test the mid-octave intervals, something not identified by Ms. Gaunt, but, in Mr. Fowler's opinion, this is something often left undone by many specialists and would not necessarily constitute neglect or malpractice. His examination of the two instruments and his review of the tests run by Ms. Gaunt, cause him to conclude that the two units, as they are presently working, are not appropriate for Mr. Pelikan because of the distortion in both ears in the mid-range frequencies.

    
    

14. Respondent, who has been in the hearing aid business for approximately

    46 years, claims that the audiogram, (Exhibit 3), relied on by Petitioner as the basis for its claim that he did inadequate testing, was not the sole test he used to fit Mr. Pelikan. Respondent's Exhibit A, which shows, in addition to the audiogram results, the result of comfort level, discomfort level, and speech discrimination tests, indicates that tests as described by Ms. Gaunt and Mr. Fowler, were done by Respondent. This document was not furnished to the Department at the time Respondent was requested to send in the documentation on

    this case. He admits that these additional entries were not on the test forms he sent in because at the time he did the testing, he was in the midst of an open house and did not have the opportunity to make immediate entries on the records. He states that these tests were, nonetheless, done and were reflected on the order which was sent in to the factory. The factory has not been able to find the original order with this information on it and Mr. Piel is unable to find anywhere in his records where these figures which now appear on the test form were initially documented. In light of this, it is found that Mr. Piel did not do the tests as required and that his presentation of them now is unsupportable.

    
    

15. Mr. Piel claims he has seen more than 3,000 patients over the years and has found that it takes time for a patient to get used to a device and to learn to use it properly. As to Mr. Pelikan, the patient was seen frequently and the aid was repaired for him several times. He is unable to comment on how the aids now work since he has not seen them for almost two years and does not know how they have been treated or who has worked on them in the interim.

    
    

16. Mr. Piel was insistent upon the fact that he has been insuring that all tests required to be made have been made since he was first contacted by the Department regarding this case in August, 1987. This does not relate to whether or not his practice met standards prior to that time. However, he claims he has been in practice in Florida for 18 years without any major problems. The five or six minor complaints out of thousands of instruments sold over this period, he considers minuscule and insignificant.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

18. In Count One of the Administrative Complaint, Petitioner alleges that Respondent violated Section 484.056(1)(h), Florida Statutes, by violating Section 484.0501. This latter cited provision requires certain minimal procedures be followed by a licensee in the fitting and selling of hearing aids. These included, inter alia, pure tone audiometric testing by air and bone to determine the type and degree of hearing deficiency, and appropriate testing to determine speech reception threshold, speech discrimination, the most comfortable sound tolerance level, and the selection of the best ear for maximum hearing aid benefit.

    
    

19. The evidence of record, notwithstanding Respondent's verbal assurances that he did so, clearly reflects that Respondent did not perform all the required procedures. His failure to record the procedures accomplished in a timely fashion raises a substantial doubt that he performed them and the inability of the manufacturer of the aid, who constructed them on the basis of Respondent's written order, to discover any indication he had provided evidence of speech tests supports this. Consequently, it must be concluded Respondent violated this section. He is, therefore, subject to disciplinary action under Section 484.056(1)(h), which lists as a ground for which disciplinary action may be taken, "Violation or repeated violation of this part or of Chapter 455..."

    
    

20. In Count Two, the Petitioner alleges Respondent to be guilty of fraud or deceit or of negligence, incompetency, or misconduct in the practice of dispensing hearing aids. There is no evidence Respondent is guilty of fraud, deceit or misconduct and the evidence does not support findings of incompetency. It does, however, indicate that Respondent was negligent in his treatment of Mr.

    Pelikan, and notwithstanding it was an unusual occurrence, the statute does not require repeated incidents to support such a conclusion. Consequently, Respondent is guilty of a violation of Section 484.056(1)(g), which permits discipline of a licensee for negligence.

    
    

21. Finally, Petitioner alleges that Respondent delivered a product unusable or impractical for the purposes represented. This allegation has not been proven. The hearing aids sold to Mr. Pelikan, if properly fitted and properly adjusted for his condition, would have served the purposes intended, that is, to improve his hearing. That they did not do so is the result of Respondent's negligence as described above. This provision was clearly intended to prevent the sale of hearing aids or other devices when not required by the patient's condition, or quackery by other means. It cannot reasonable be held to have been intended to provide an alternative or additional cause of action for mere negligence or improper performance.

    
    

22. Since Respondent has been shown to be guilty of two of the three Counts alleged, some disciplinary action is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, Ordway Piel, pay an administrative fine of

$500.00; that he be reprimanded; and that his license be placed on probation for a period of one year under such conditions as the board may specify.

RECOMMENDED this 12th day of February, 1988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 12th day of February, 1988.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Marcelle Flanagan Executive Director

DPR, Board of Hearing Aid Specialists

130 North Monroe Street Tallahassee, Florida 32399-0750

Ordway F. Piel

2357 South Tamiami Trail Venice, Florida 33595

Docket for Case No: 87-004171

Orders for Case No: 87-004171