STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7363

)

MORTON J. SCHOMER, )

)

Respondent. )

)

RECOMMENDED ORDER

By motion and stipulation filed August 26, 1991, the parties agreed to the entry of a recommended order based on the parties' stipulated facts, stipulated law, and stipulated disposition. Such stipulation provided as follows:

STIPULATED FACTS

1. Morton J. Schomer, O.D. is a licensed optom- etrist, license number OP 1307.

   
   

2. From at least August 1989 through October 1989, the Respondent provided optometric ser- vices to the residents at Manor Care Nursing Home, Plantation, Florida, pursuant to a contract with the Nursing Home.

   
   

3. In August 1989, the Respondent performed an eye examination upon Patient #1 pursuant to a written authorization. The Respondent's records for this examination include a post ocular history and current medical history, as well as ocular

   and systemic medications. This degree of re- cording is not consistent with the Complaint's allegation that only eyeglass adjustment was re- quested. This patient suffered from Parkinson's disease and the history was provided by a family member. Patient #1 died on March 27, 1991.

   
   

4. In September 1989, the Respondent again examined Patient #1. At that time, the Respon- dent noted a diagnosis of conjuncti-vitis, and added treatment therefor by lid scrubs. This treatment was appropriate for a non-specific blepharoconjunctivitis.

   
   

5. In October 1989, Patient #2's daughter asked the Respondent to perform an eye exami- nation upon Patient #2. This patient was com-

   plaining of diplopia with a history of diabetes, cataracts and reduced vision. Visual acuities and pressures were checked and the diplopia

   was evaluated with the red lens, which was negative. There was no strabismus noted, nor restriction of gaze. The anterior segment examination revealed cataract, with optic

   nerves and indirect ophthalmoscopy to be normal. The Respondent performed interferometry in order to determine visual acuity without cataracts in order to assess the need for further testing.

   The Respondent performed glare testing to deter- mine the effect of cataracts in and out of bright sunlight. The Respondent's use of the Keystone Telebinocular tester is appropriate for complaints of diplopia. Finally, the Respondent performed

   a sensorimotor examination upon Patient #2 to evaluate the neuromuscular control due to the symptoms for diplopia.

   
   

6. All of the billings for each of these patients were appropriate.

   
   

7. The foregoing Factual Stipulations are based upon the formal written optometric opin- ions of three (3) licensed optometrists and one (1) licensed ophthalmologist currently practicing in the Miami area. These opinions are attached ... [to the stipulation] ...

   
   

   STIPULATED LAW

   
   

8. The Administrative Complaint filed herein alleges in Count I that the Respondent violated Subsection 463.016(1)(g), Florida Statutes, by exhibiting negligence, incompetency or miscon- duct in the practice of optometry.

   
   

9. The Administrative Complaint filed herein further alleges in Count II that the Respondent violated Subsection 463.016(1)(m), Florida Statutes, by exercising influence on a patient in such a manner as to exploit the patient for the financial gain of the licensee.

   
   

10. The greater weight of the evidence, as demonstrated by Exhibits A, B, C and D, demon- strates that there is not clear and convincing evidence that the Respondent violated either Subsection charged in the Administrative Complaint.

    
    

11. Both parties hereby agree to waive all claims for attorneys fees and costs associated with this case.

12. Both parties hereby agree to waive all rights to appeal or further review of this Stipulation.

    
    

    STIPULATED DISPOSITION

    
    

13. The parties hereby agree that these cases should be dismissed.

CONCLUSION

Based on the parties' resolution of their dispute pursuant to Section 120.57(3), Florida Statutes, it is recommended that a final order be entered dismissing the administrative complaint.

RECOMMENDED in Tallahassee, Leon County, Florida, this 25th day of September 1991.

WILLIAM J. KENDRICK

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 25th day of September 1991.

COPIES FURNISHED:

Laura P. Gaffney, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

Patricia Guilford Executive Director Board of Optometry

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007363

Orders for Case No: 90-007363