STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3933

)

PIERRE V. DWYER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 28, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Steven Rothenburg, Esquire

Agency for Health Care Administration 9325 Bay Plaza Boulevard, Number 210

Tampa, Florida 33619 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent, a licensed physician, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is a physician licensed to practice medicine in the State of Florida who practiced in the specialty of ophthalmology at the times pertinent to this proceeding. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent that alleged certain facts regarding an examination performed at Respondent's office on an undercover investigator who posed as a patient. Based on those factual allegations, Petitioner charged Respondent in Count One with violating the provisions of Section 458.331(1)(t), Florida Statutes, in Count Two with violating the provisions of Section 458.331(1)(m), Florida Statutes, and in Count Three with violating the provisions of Section 458.331(1)(dd), Florida Statutes. Respondent timely requested a formal hearing, and this proceeding before the Division of Administrative Hearings followed.

Respondent disappeared shortly after he filed his request for a formal hearing. Despite diligent search and inquiry, Petitioner has been unable to locate the Respondent. Notice of the formal hearing in this matter was published once a week for four consecutive weeks in both the Miami Herald and the Tallahassee Democrat.

At the formal hearing, Petitioner presented the testimony of Augustin Garcia and Dr. Glenn Wolfson. Mr. Garcia is an investigator employed by Petitioner. Dr. Wolfson is a board certified ophthalmologist who was accepted as an expert in the field of ophthalmology. Petitioner presented eight exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. Rulings on the Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida charged with regulating the practice of medicine in the State. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and practiced in the specialty of ophthalmology. Respondent's license, number ME 0022716, expired while this matter was pending.

   
   

2. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent who thereafter timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed. Shortly after filing the request for hearing Respondent's whereabouts became unknown to Petitioner. Despite diligent search and inquiry, Petitioner was unable to locate Respondent. Notices mailed by the Division of Administrative Hearings to his last known address were returned. Constructive notice of the hearing in this matter was given to Respondent by publication.

   
   

3. In May 1991, Respondent worked at Lucy Optical Store in the Little Havana section of Miami, Florida. On May 13, 1991, Augustin Garcia, an investigator employed by Petitioner appeared at Lucy Optical Store in an undercover capacity. Mr. Garcia posed as a patient who complained that he was having difficulty seeing at night and that lights were causing him to have headaches. Mr. Garcia requested an eye examination.

   
   

4. After discussing his complaints, Respondent led Mr. Garcia from the waiting room to an examining room.

   
   

5. On May 13, 1991, Myriam Garcia Lacayo was working at Lucy Optical Store as Respondent's medical assistant. Ms. Lacayo is not licensed by the Petitioner in any capacity.

   
   

6. While Respondent was present in the examining room, Ms. Lacayo performed a refraction test on Mr. Garcia's eyes. Upon completing the refraction test, Ms. Lacayo told Mr. Garcia that he did not need glasses and instructed Mr. Garcia to return within nine months to a year for a follow-up examination. Ms. Lacayo further advised Mr. Garcia that he should wear non- prescription eyeglasses with a light tint for night driving. Mr. Garcia was not told by anyone that he had not been given a complete eye examination.

7. After the examination was completed, Mr. Garcia revealed his true identity and requested the medical records that had been taken, including a prescription that Mr. Garcia had seen Respondent write. Respondent became very upset upon learning Mr. Garcia's true identity and refused to give him the prescription. The manager of Lucy Optical Store gave Mr. Garcia the medical record, consisting of a one page document, that had been generated as a result of his visit.

   
   

8. Respondent failed to administer to Mr. Garcia appropriate tests for glaucoma or for cataracts. The standard of care requires that a patient such as Mr. Garcia be evaluated for glaucoma and cataracts when the patient requests a complete eye examination. Failure to perform these tests may falsely reassure the patient that his eyes have been fully examined and found to be healthy. If these tests are not performed, the ophthalmologist should explain to the patient that he had only had a refraction test and not a complete eye examination. Respondent practiced below the standard of care in failing to test Mr. Garcia's eyes for glaucoma and cataracts.

   
   

9. Respondent's medical records fail to document any reason why appropriate tests for glaucoma and cataracts were not performed.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the

    firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

12. Section 458.331(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (m) Failing to keep written medical records

       justifying the course of treatment of the patient . . .

       * * *

       (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circum- stances. . . . As used in this paragraph . . . "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circum- stances," shall not be construed so as to require more than one instance, event, or act. . . .

       * * *

       (dd) Failing to supervise adequately the activities of those physician assistants, paramedics, emergency medical technicians, or advanced registered nurse practitioners acting under the supervision of the physician.

       
       

13. Rule 61F6-27.003(2), Florida Administrative Code, provides as follows:

    
    

    (2) A licensed physician shall maintain patient medical records in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken. (Emphasis added.)

    
    

14. Petitioner established by clear and convincing evidence that Respondent's medical records fail to demonstrate why tests for cataracts and glaucoma were not undertaken when such tests were clearly indicated. Consequently it is concluded that Respondent's medical records failed to meet the standards imposed by Rule 61F6-27.003(2), Florida Administrative Code. Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count Two of the Administrative Complaint.

    
    

15. Petitioner also established by clear and convincing evidence that Respondent failed to "practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances" in violation of Section 458.331(1)(t), Florida Statutes, by failing to test Mr. Garcia for cataracts and glaucoma, as alleged in Count One of the Administrative Complaint.

    
    

16. Count Three of the Administrative Complaint charges that Respondent failed to supervise Ms. Lacayo to ensure that a complete evaluation of Mr. Garcia was performed in violation of Section 458.331(1)(dd), Florida Statutes. Ms. Lacayo is not licensed by the Petitioner in any capacity and it was not established that she had the ability to conduct tests for cataracts and glaucoma. 1/ Respondent remained in the examining room at all times while Ms. Lacayo administered the refraction test. As discussed above, Petitioner established that Respondent's failure to perform appropriate tests for cataracts and glaucoma violated Section 458.331(1)(t), Florida Statutes, as alleged in Count One of the Administrative Complaint. It is concluded that Respondent had the direct responsibility, as opposed to a supervisory responsibility, to ensure

    that a complete examination was performed. Consequently, it is concluded that Respondent is not guilty of violating Section 458.331(1)(dd), Florida Statutes, as alleged in Count Three of the Administrative Complaint.

    
    

17. Petitioner is authorized to discipline the licensure of a physician pursuant to Section 458.331(2), Florida Statutes, as follows:

    
    

    (2) When the board finds any person guilty of any of the grounds set forth in subsection

    1. . . . it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

       2. Revocation or suspension of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not

          to exceed $5,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

       7. Issuance of a letter of concern.

       8. Corrective action.

       9. Refund of fees billed to and collected from the patient.

    
    

18. Rule 61F6-20.001(1)(i), Florida Administrative Code, provides disciplinary guidelines for a violation of Section 458.331(1)(m), Florida Statutes, as follows:

    
    

    (i) From a reprimand to denial or two (2) years suspension followed by probation, and

    an administrative fine from $250.00 to $5,000.00.

    
    

19. Rule 61F6-20.001(1)(t), Florida Administrative Code, provides disciplinary guidelines for a violation of Section 458.331(1)(t), Florida Statutes, as follows:

    
    

    (t) From two (2) years probation to revocation or denial, and an administrative fine from $250.00 to $5,000.00.

    
    

20. The recommended penalty that follows considers that Respondent cannot be located, that his present ability to practice medicine is unknown, and that his license to practice medicine in Florida has expired. Also considered is the potential harm that can result by a physician's failure to thoroughly examine a patient who may have cataracts or glaucoma.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

facts and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner assess an administrative fine in the amount of $5,000.00 against Respondent and require that Respondent demonstrate that he has the present ability to practice medicine with the requisite degree of skill and safety prior to the renewal of his license to practice medicine in the State of Florida. IT IS FURTHER RECOMMENDED that his licensure be placed on probation for a period of two years if it is renewed.

DONE AND ENTERED this 3rd day of January, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 3rd day of January 1995.

ENDNOTE

1/ Respondent is not charged with permitting an unlicensed person to conduct a refraction examination. Likewise, there is no allegation that the refraction test administered by Ms. Lacayo was below the standard of care.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3933

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 8, 10, 12, 13, and 14 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 7, 9, and 11 are subordinate to the findings made.

3. The proposed findings of fact in paragraph 15 are rejected as being contrary to the conclusions reached.

COPIES FURNISHED:

Steve Rothenburg, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Pierre V. Dwyer, M.D. 1047 West Flagler Street Miami, Florida 33130

Pierre V. Dwyer, M.D.

3554 Northwest 12th Street Miami, Florida 33130

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0770

Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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 ten 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: 93-003933

Orders for Case No: 93-003933