STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

)

Petitioner, )

)

vs. ) CASE NO. 89-4522

)

JACK L. HARGRAVES, 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 November 29, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Jack L. Hargraves, O.D., pro se

1211 South Dale Mabry Highway Tampa, Florida 33629

STATEMENT OF THE ISSUES

The issue for decision herein is whether or not Respondent exhibited fraud, deceit, negligence, incompetence, or misconduct in the examination and fitting of a patient for contact lenses in violation of Subsection 463.016(1)(g) and (h), Florida Statutes, and, if so, what, if any, administrative penalty should be imposed.

PRELIMINARY STATEMENT

By its Administrative Complaint signed December 6, 1988, Petitioner seeks to impose disciplinary sanctions against Respondent. Respondent has timely filed an Election of Rights Form requesting a formal hearing and contests Petitioner's intended disciplinary action. On August 21, 1988, the matter was referred to the Division of Administrative Hearings, and in response to the initial order, the parties requested leave to complete prehearing preparations, including leave to complete discovery. On September 5, 1989, the matter was noticed for hearing for November 29, 1989, and was heard as scheduled.

At the hearing, Petitioner called Walter Hughes, Julian V. Newman, Joel Marantz, Patricia Gama and Walter Hathaway. Petitioner introduced into evidence exhibits 1-4. Respondent called witnesses Gerald Krumbholz, Sharon Hosey and William Hunter. The parties filed proposed recommended orders on January 8, 1990, which were considered in the preparation of this Recommended Order.

Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

1. Petitioner, Department of Professional Regulation, Board of Optometry, is the state agency charged with regulating the practice of optometry in Florida, pursuant to Section 20.30 and Chapters 455 and 463, Florida Statutes.

   
   

2. Respondent is, and has been at all times material hereto, a licensed optometrist who holds license number 0000437, and his last address of record is Zodiac Optical, 1211 South Dale Mabry Highway, Tampa, Florida 33

   
   

3. On February 21, 1987, Respondent examined and fitted Patricia Gama for hard contact lenses and Ms. Gama paid $154.00 for the lenses. On that date, Respondent obtained an initial refraction for the right eye of -1.25 and for the left eye of -1.00 (eye glass prescription only) and by use thereof, fitted Gama with contact lenses.

   
   

4. At the time, Gama was employed as a cashier at a commercial retail establishment. Gama immediately began experiencing discomfort with the contacts, specifically blurred vision, red eyes and headaches. Gama found it difficult to read the cash register keys and function as a cashier.

   
   

5. Gama advised Respondent of her discomfort on February 25, 1987, and at that time, Respondent fitted Gama with another set of contact lenses. Gama continued to experience discomfort with the contact lenses and after advising Respondent of such, Respondent on February 27, 1987, fitted Gama with a third set of contact lenses.

   
   

6. Gama's discomfort with the contact lenses continued and she again advised Respondent of his discomfort. On March 18, 1987, Respondent fitted Gama with a fourth set of contact lenses. Through it all, Respondent used eleven different lenses in an effort to properly fit Gama; however, she continued to experience discomfort.

   
   

7. Throughout Respondent's endeavor to properly fit Gama with contact lenses, he did so in a courteous and professional manner. However, Gama's husband insisted that she seek a second opinion from another optometrist, obtain a refund from Respondent and discontinue using the lenses Respondent prescribed.

   
   

8. On April 22, 1987, Respondent's partner, Dr. William Hunter, refunded

   $74.00 of the total purchase price of $154.00 that Gama paid. He also gave Gama the prescription prepared for her by Respondent. Respondent works in a group practice which is owned by Dr. Hunter. Dr. Hunter has a policy of giving only a 50% refund within thirty days of purchase if the patient is not satisfied.

   
   

9. On the following day, April 23, 1987, Gama was examined and fitted for contact lenses by Dr. Julian Newman. Respondent's initial refraction was twice as strong as Dr. Newman's refraction.

10. It is not uncommon for patients, such as Gama, to test differently for glasses on different days which can result in different refraction readings on different days. Likewise, it is not unusual for an optometrist to note different refractions for the same patient on different days, or to make an error in the refraction readings for the same patient. When this is done however, the optometrist should try to correct the mistake if, in fact a mistake is made. Here, Respondent strived to satisfy Gama and never ceased efforts to comfortably fit her with contact lenses. Respondent made a refund to Gama in keeping with office policy which appeared reasonable under the circumstances considering the time spent with Gama before she decided to seek another opinion from another optometrist. (Testimony of Drs. Julian D. Newman, O.D. and Joel Marantz, O.D. both of whom were expert witnesses in this proceeding.)

    
    

11. Respondent's receptionist, Beatrice Franklin, paid $100.00 to Gama on or about December 11, 1987, in exchange for Gama signing a request to drop her charges against Respondent at the Department of Professional Regulation. Respondent had no knowledge of Ms. Franklin's actions, and in fact, Sharon Hosey, a receptionist employed by Respondent, corroborated Respondent's testimony respecting lack of knowledge on his part as to any payments to Gama other than the $74.00 refund in exchange for her withdrawal of the complaint with Petitioner or to otherwise obtain Gama's signature on a release.

    
    

12. Respondent was conscientiously attempting to comfortably fit Gama with contact lenses when Gama decided to seek a second opinion. He did so by changing the prescriptions on several occasions, including changing to lenses made by a different manufacturer. In the process, Respondent tried eleven different contact lenses. Respondent was willing to continue treating Ms. Gama and provide the required follow-up care.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

14. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

15. Respondent, a licensed optometrist in Florida, is subject to Petitioner's jurisdiction pursuant to Chapter 463, Florida Statutes.

    
    

16. Petitioner has the burden of proving the alleged violation by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

17.. Insufficient evidence was offered herein to establish that Respondent violated Subsections 463.016(1)(g) and (h), Florida Statutes, as alleged. Here the evidence reveals that Respondent examined and fitted Patricia Gama for contact lenses in a professional and courteous manner. He provided follow-up care to her as was required, and he did so in a manner which met the minimum optometric standards. Respondent was not negligent or incompetent in providing the follow-up care to his patient, Patricia Gama. While it is true that Gama experienced discomfort, all of the experts who testified at hearing indicated that it was not unusual for a patient to experience discomfort while being fitted with contact lenses. That discomfort does not, however, rise to the level of negligence or incompetence within the purview of Subsections 463.016(1)(g) and (h), Florida Statutes. Likewise, there was no evidence that Respondent was in any manner responsible for the payment of a fee in exchange

for withdrawal of her complaint to the Petitioner. For these reasons, I shall recommend that the Administrative Complaint filed herein be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Board of Optometry enter a Final Order dismissing the Administrative Complaint filed herein in its entirety.

DONE and ENTERED this 16th day of February, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16 day of February, 1990.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional

Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Jack L. Hargraves, O.D.

1211 South Dale Mabry Highway Tampa, Florida 33629

Patricia Guilford, Executive Director Florida Board of Optometry

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY

Petitioner,

vs. DOAH CASE NO.: 89-4522

DPR CASE NO.: 00:88897

JACK L. HARGRAVES, O.D.,

Respondent.

/

FINAL ORDER

This matter came before the Board of Optometry (hereinafter referred to as the "Board") for final action pursuant to subsection 120.57(1)(b)9, Florida Statutes, at a public meeting held on June 7, 1990 in Tampa, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein said Recommended Order is attached and incorporated herein by reference. A transcript of the proceeding is available, if necessary.

Each member of the Board of Optometry confirmed on the record that he or she had read and examined the entire record in this case as deliberated in Section 120.57(1)(b)(6), Florida Statutes. The Petitioner submitted Exceptions to the Hearing Officer's Recommended Order on March 13, 1990 and Supplemental Exceptions to the Hearing Officer's Recommended Order on March 15, 1990. As Rule 28-5.404, Florida Administrative Code, provides that exceptions must be submitted within 20 days of the issuance of the Recommended Order the Petitioner submitted a Motion for Extension of Time for consideration of Petitioners exceptions in conjunction with Petitioners first set of exceptions. Considering the premises therefore, the Board granted said motion at the meeting of the Board on June 7, 1990. Accordingly, both sets of Petitioner's Exceptions to the Hearing Officers Recommended Order were then considered at that meeting. The Board of Optometry ruled as follows on each of Petitioners Exceptions:

Petitioner's Exceptions to Hearing Officer's Recommended Order:

Petitioner's exception I(A.) to paragraph number seven (7) of the Hearing Officer's Findings of Fact is accepted as no competent substantial evidence is found in the entire record to support a finding that Respondent endeavored to fit the complainant with contact lenses in a courteous and professional manner.

Petitioner's exception I(B.) to the first and second sentence of paragraph number ten (10)

of the Hearing Officer's Findings of Fact is accepted as no competent substantial evidence is found in the entire record to support said finding.

Petitioner's exception 1(C.) to the third sentence of the Hearing Officer's Finding of Fact number ten (10) is accepted as it is a Conclusion of Law rather than a Finding of Fact.

Petitioner's exception to the fourth sentence of Finding of Fact paragraph number ten (10) is rejected as the record includes substantial competent evidence that the Respondent strived to satisfy the complainant and never ceased efforts to comfortably fit her with contact lenses.

Petitioners Exception to Hearing Officer's ruling on the Petitioners Proposed Finding of Fact number 19 is rejected as the record does include competent substantial evidence that the Respondent did a follow-up examination on February 25, 1987.

The Petitioner withdrew remaining exceptions posed under heading I.C.

Petitioner's Exception I(D.) to the Hearing Officer's Finding of Fact number twelve (12) is rejected insofar as there is competent substantial evidence that the Respondent did conscientiously attempt to comfortably fit

Goma with contact lenses and was willing to continue treating the complainant.

Petitioner's exceptions to the Hearing Officer's Finding of Fact number twelve (12) is accepted insofar as it is found there is no competent substantial evidence in the record that the Respondent provided the "required" follow up case.

Petitioner's exceptions II(A.) to the Hearing Officer's Conclusions of Law, paragraph 5, is accepted in that a violation of Section 463.016(1)(g) and 463.016(1)(h), Florida

Statutes, by violation of Rule 21Q-3.010, Florida Administrative Code, has been established by

the Findings of Fact in that the record is clear and convincing that Respondent failed to properly fit the complainant with contact lenses after eleven attempts. Further support for acceptance of this exception to the Hearing Officer's Conclusions of Law is found by clear, convincing, and uncontradicted evidence (transcript page 77) that the complainant followed all of Respondent's directives and left Respondent's case because

he could not or would not help her (transcript page 79).

The Board rules as follows on Petitioner's Supplemental Exceptions to the Hearing Officer's Recommended Order:

Petitioner's exception to the Hearing Officer's Finding of Fact that there was no evidence that Respondent was responsible for the payment of

a fee in exchange for withdrawal of her complaint to Petitioner is rejected as there is no competent substantial evidence to support a finding that Respondent has personal knowledge of this offer.

The Petitioner withdrew the remaining supplemental exceptions except as such are covered in and support Petitioners first set of Exceptions.

In regards to the Recommended Penalty, Petitioner took exception in both the first and supplemental exceptions to the dismissal of the case by the Hearing Officer. These exceptions are accepted, as a violation of Section 463.016(1)(g) and (h) and rule 21Q-3.010, Florida Administrative Code, has been found.

FINDINGS OF FACT

The Findings of Fact of the Recommended Order in this case are hereby amended to conform to the previous specific rulings in the Petitioners exceptions and are adopted as the Findings of Fact in the Final Order in each amended form. Such amendments to the Findings of Fact of the Recommended Order include deletion of the first sentence of paragraph number seven (7), deletion of the first, second, and third sentences of paragraph number (10), and deletion of the words "Respondent was willing . . . to provide the required follow up case" from paragraph number twelve (12). Such amendments also include the addition Finding of Fact that the complainant followed all of the Respondents professional directions in the process of Respondent's handling of her case.

CONCLUSIONS OF LAW

Based on the Findings of Fact of this Final Order it is concluded that the Respondent violated Section 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.007, Florida Administrative Code. Considering the Hearing Officers Findings of Fact in this Final Order and the range of appropriate penalties as set out in Rule 21Q-15.004, Florida Administrative code, and the allowed list aggravating and mitigating circumstances as set out in Rule 21Q-15.007, Florida Administrative Code, it is found that a penalty as allowed by Rule 21Q-15.004, Florida Administrative Code, is appropriate.

Specific citations to the record supporting an increase in the penalty ordered by the Hearing officer are:

1. Recommended Order, Findings of Fact paragraph 3 through 6 as supported by the transcript.

   
   

2. The Conclusion of Law as found by the board that Respondent was in fact incompetent to practice optometry in all its aspects, thereby violating Section 463.016(1)(g) and (h), Florida Statutes.

   
   

3. That Respondent has been previously disciplined for a like or similar offense. (See Petitioner Composite Exhibit #4 to the Recommended Order).

This order becomes effective upon filing with the Board Clerk.

WHEREFORE it is ORDERED that the Respondent is assessed a fine of $2,000 for each of the two violations of Section 468.016, Florida Statutes, (for a total of $4,000) to be paid to the Board of Optometry within 30 days of the date of this Order, and furthermore that the Respondent serve a period of 24 months probation in compliance with Chapter 21Q-7, Florida Administrative Code, during which time he shall report to the Board of Optometry three times per year, upon proper notice and demand of the Board with 3 patient records including one contact lens patient record.

BOARD OF OPTOMETRY

RONALD FOREMAN, O.D. VICE CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to Jack L. Hargraves, O.D., 1211 South Dale Mabry Highway, Tampa, Florida 33629 this 23rd day of August , 1990.

Docket for Case No: 89-004522

Orders for Case No: 89-004522