R. L. for the purpose of providing a second opinion. Dr. Jachimowicz diagnosed R. R. L. with advanced glaucoma.
The Administrative Complaint alleges that the patient's optic nerve was only 5-10 percent viable, so as to render him legally blind. The Administrative Complaint alleges that the patient's outcome would not have been as severe if Respondent had diagnosed and treated the glaucoma sooner. The Administrative Complaint alleges that Respondent never referred R. R. L. to another physician for treatment of his glaucoma.
Count I of the Administrative Complaint alleges that Respondent failed to provide the degree of care that conforms to the level of care provided by practitioners in the same or similar communities, as required by Section 463.0135, Florida Statutes.
Count II of the Administrative Complaint alleges that Respondent provided the patient and the Agency for Health Care Administration with different versions of the same patient records and that Respondent thus made or filed a report or record
that he knew to be false, in violation of Section 463.016(1)(e), Florida Statutes.
Count III of the Administrative Complaint alleges that Respondent committed fraud, deceit, negligence, incompetency, or misconduct in the practice of optometry, in violation of Section 463.016(1)(g), Florida Statutes.
With leave of the Administrative Law Judge, Petitioner amended the Administrative Complaint. The new allegations state that Respondent testified, during a January 19, 1993, deposition, that he had never had prior disciplinary action, but, on
December 10, 1984, he had been sent a letter of guidance from the Board of Optometry and, on December 18, 1987, he had been disciplined by the Board of Optometry. Also, as amended, Count III alleges only fraud, deceit, negligence, or misconduct in the practice of optometry.
At the hearing, Petitioner called three witnesses and offered into evidence Petitioner Exhibits 1-11. Respondent called two witnesses and offered into evidence Respondent Exhibits 1-4. All exhibits were admitted.
The court reporter filed the Transcript on September 22, 1999.
Respondent received his Florida optometry license in October 1982. He earned a doctorate in veterinary parasitology
from the University of Florida in 1976 and an optometry doctorate from the New England College of Optometry in 1982.
This case involves Respondent's failure to diagnose and treat glaucoma. Glaucoma refers to as many as 87 different types of conditions in which, in most of these conditions, intra-ocular pressure reduces the amount of blood that circulates into the optic nerve. The optic nerve consists of thousands of fibers, each of which transmits from a retinal position--anywhere from central vision to the periphery--to the portion of the brain dedicated to visual processing. Deprived of blood, fibers lose their ability to transmit from the eye to the brain.
Traditionally, glaucoma has been associated with high intra-ocular pressure. In the early 1980s, nearly all professionals believed that low- or normal-pressure glaucoma did not exist. However, since the mid-1980s, opthamologists have recognized that about 25 percent of patients suffering from glaucoma do not experience high intra-ocular pressure. Optometrists arrived at the same knowledge a few years later, and general understanding of low- or normal-pressure glaucoma has increased through the 1990s.
Persons suffering low- or normal-pressure glaucoma have an optic nerve that is unusually susceptible to damage from intra-ocular pressure. Such persons often display low blood
pressure or fluctuating blood pressure. The differential between the greater, though normal or low, intra-ocular pressure and the
low blood pressure can impede blood circulation to the optic nerve. Thus, just as persons displaying low intra-ocular pressure may suffer from glaucoma, so persons displaying high intra-ocular pressure may not suffer from glaucoma. Intra-ocular pressure is therefore not an especially definitive indicator of the presence of glaucoma, although high intra-ocular pressure remains a good indicator.
The cupping of the optic nerve is another indicator of glaucoma that is not especially definitive. Cupping refers to the indentation of the optic nerve as it enters the eye. Cupping may be due to the response of the optic nerve to intra-ocular tension. However, some persons display physiological cupping, which merely reflects the physical makeup of that patient's optic nerve and does not necessarily indicate any malfunction in the nerve.
The older method of determining the extent of cupping required an assessment of the color of the optic nerve. Pink is indicative of healthy tissue, and white is indicative of the cupped area. A newer method of determining the extent of cupping requires an assessment of the extent of bending of the blood vessels, which are indicative of the extent of the bending of the optic nerve fibers, which themselves cannot be seen through their entire bend.
One factor that has, at all material times, been a strong risk factor for glaucoma is a family history of glaucoma,
especially a maternal genetic predisposition to the disease. Obtaining a history is thus important to an early diagnosis of glaucoma. However, the linkage between high-pressure glaucoma and low- or normal-pressure glaucoma is not especially strong, so family histories, given the failure to recognize low- or normal- pressure glaucoma until recently, often do not reveal the existence of low- or normal-pressure glaucoma.
After a genetic predisposition toward glaucoma (and probably more important given the failure of the relevant professional communities to recognize low- and normal-pressure glaucoma until recently), the most important indicator of glaucoma is an impairment of a person's visual field. A visual field test is the most important diagnostic test because it determines the extent to which a person may have suffered a visual loss in any part of his or her visual field.
There are different types of visual field tests. The most basic visual field test consists of a mere screening. This is a confrontational field examination in which the optometrist places his or her fingers in the four quadrants of the patient's visual field and asks the patient what he or she can see. This screening has been part of the practice of optometry at all material times.
Permitting a more accurate test, the Goldman visual field machine has been available since the early 1980s, although
it did not become a standard piece of equipment in optometrists' offices until somewhat later.
At present, the Humphrey Perimeter machine is a newer piece of equipment. The basic components of this machine have been available since the early 1980s, but not as long as the Goldman visual field machine. The Humphrey Perimeter machine supplies a light stimulus to different locations within the patient's visual field, and the patient is given a means by which to indicate electronically the location, size, and brightness of the light source. The Humphrey Perimeter machine then maps out the data, so as to provide an easily digestible, graphic display of any deficiencies in a patient's visual field.
As apparent in the some of the preceding findings, expertise in the diagnosis of glaucoma has advanced considerably in the past 10 years. At the same time, regulatory and customary restraints upon the ability of optometrists started to lift about 10-15 years ago, as optometrists gained the right to dilate pupils and administer a wide range of prescription drugs, including drugs necessary to treat glaucoma. By the late 1980s, the Humphrey Perimeter machine, or other, similar forms of automated periphery machines, began to appear with regularity in the offices of optometrists.
Shortly after entering practice, Respondent, in 1983, purchased the practice of David Johnson, an opthamologist.
Dr. Johnson's office was located in Brooksville, which is where
Respondent has maintained his practice of optometry. From the date of the purchase until sometime in 1985, Dr. Johnson practiced on a consultative basis in Respondent's office.
Respondent examined R. L., who was born in 1940 or 1941, four times: November 6, 1984; June 17, 1987; October 18, 1989; and October 11, 1990.
At the first, as well as the other three, office visits, an assistant performed the confrontational field screening to assess R. L.'s visual field. These tests disclosed nothing abnormal. During the first and ensuing visits, an assistant or Respondent tested R. L.'s intra-ocular pressure. These tests disclosed nothing abnormal.
The notes from the first office visit state that there was no family history of eye problems.
During the first visit, Respondent examined R. L.'s eyes and found a possible abnormality--cupping--in the appearance of the patient's optic nerves. Dr. Johnson was in the office at the time, so Respondent asked Dr. Johnson to examine R. L., who had previously been Dr. Johnson's patient. Dr. Johnson examined
R. L. and determined that his optic nerves were normal.
At the conclusion of the first visit, Respondent discussed with R. L. the cupped appearance of his optic nerve. Respondent showed R. L. intra-ocular photographs of his optic nerve and a normal optic nerve and told R. L. that his cupping was physiological. R. L. testified that he did not feel that
Respondent necessarily should have detected the glaucoma until the third visit.
At the second and third office visits, Respondent found that the extent of cupping had remained substantially unchanged.
At the second office visit, though, R. L. reported that his mother had suffered from glaucoma. The office records reveal that his blood pressure was 108/62, which is somewhat low.
By the third office visit, Respondent had purchased an automated perimeter machine for use in his office. Respondent suggested that R. L. undergo a visual field test using this machine on each of the last two visits. However, R. L. refused to do so. At the end of the third and fourth office visits, Respondent suggested that R. L. see an opthamologist, but R. L. declined to do so after the third office visit.
A few days after the fourth visit, evidently following Respondent's recommendation, R. L. visited an opthamologist for an examination. In performing his examination, the opthamologist discovered that R. L. had advanced glaucoma.
R. L. has since undergone glaucoma surgery to relieve intra-ocular pressure. His vision is impaired. Although an earlier diagnosis probably would have slowed the deterioration in his vision, it would not have altered the eventual outcome of the disease, which is continued deterioration in vision.
The evidence is decidedly vague concerning the applicable standard of care in Brooksville, or even in Florida,
at the time of each of the four office visits from 1984-1990. This was a period characterized by many changes in the understanding of glaucoma by the optometric community, as well as the opthamologic community, and by the distribution of automated perimeter equipment, which facilitates sophisticated visual field testing. Obviously, the difficulty in establishing the applicable standards of care is heightened by the fact that 9-15 years passed, following the office visits, before Petitioner referred this case to the Division of Administrative Hearings.
Neither the opthamologic nor the optometric community was widely aware of the existence of low- or normal-pressure glaucoma until after the first visit. The optometric community did not become aware of the existence of this form of glaucoma until after the expiration of this six-year period.
At the time of the first three visits, Respondent met the standard of care applicable to optometrists in Florida, and certainly in Brooksville, by having his staff conduct confrontation visual field examinations, testing intra-ocular pressure, and monitoring the cupping to ensure that it did not worsen. Although the cupping was relatively severe at the time of the first visit, so that it could not deteriorate significantly, Respondent had properly obtained the diagnosis of an opthamologist, who had previously cared for R. L., to support Respondent's conclusion that the cupping was merely physiological in origin.
At no time did Respondent's diagnostic efforts deviate from the applicable standard of care. His acquisition of automated perimeter equipment was early for the Brooksville optometric community, and the record does not establish that the Florida optometric community widely acquired such equipment any earlier, or even at the time that Respondent did. Respondent properly suggested to R. L. during the third and fourth visits that R. L. undergo more sophisticated visual field testing, as Respondent was eager to put his new equipment to use, but R. L. declined to undergo the procedure because he felt that it was unnecessary. Likewise, Respondent properly suggested to R. L. during the third and fourth visits that R. L. see an opthamologist, but R. L. declined to do so.
Respondent's records are austere, but Petitioner has failed to prove by clear and convincing evidence that Respondent did not adequately record the course of his care of R. L. The better practice would have suggested more detailed records and more detailed records prepared contemporaneous to the dates of care. However, the omissions did not establish by clear and convincing evidence a violation of the recordkeeping requirements, nor did any late entries establish by clear and convincing evidence an intent to deceive.
Lastly, Respondent underwent a deposition in a civil action for damages that R. L. brought against him. The plaintiff's attorney asked Respondent: "[Have you ever had]
[c]omplaints of any kind of department of regulation of any kind?" Respondent responded by asking, "From a patient or anything?" The attorney answered, "Yes." And Respondent replied, "Not that I am aware of."
Respondent has been disciplined twice in the past. However, both of these situations involved Petitioner-initiated charges, which were not based on complaints from actual patients of Respondent.
Petitioner has thus failed to prove by clear and convincing evidence that Respondent committed fraud or deceit in the practice of optometry by answering this vague question in the negative. It is at least as likely as not that Respondent's use of "or anything" in his responsive question meant only to restate the notion that his answer would be limited to patient-initiated charges.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Section 463.0135 provides, in relevant part:
A licensed practitioner shall provide that degree of care which conforms to that level of care provided by medical practitioners in the same or similar communities. A licensed practitioner shall advise or assist her or his patient in obtaining further care when the service of another health care practitioner is required.
A licensed practitioner diagnosing angle closure, infantile, or congenital forms of glaucoma shall refer the patient to a physician skilled in diseases of the eye and licensed under chapter 458 or chapter 459.
(9) A licensed practitioner who believes a patient may have glaucoma shall promptly advise the patient of the serious nature of glaucoma. The licensed practitioner shall place in the patient's permanent record that the practitioner provided such advice to the patient.
Section 463.016(1)(e) and (g) provide that the Board of Optometry may take disciplinary action for the following acts:
(e) Making or filing a report or record which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to do so. Such reports or records shall include only those which are signed by the licensee in her or his capacity as a licensed practitioner.
(g) Fraud or deceit, negligence or incompetency, or misconduct in the practice of optometry.
Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
For the reasons set forth in the findings of fact, Petitioner failed to prove by clear and convincing evidence the material allegations set forth in the Administrative Complaint, as amended.
