Findings Of Fact On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds $15,000. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation). The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).
The Issue The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
Findings Of Fact This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes. The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules. The language of Subsection 120.60(5), Florida Statutes (1978), states: (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49. Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.) The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence. Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference. After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.) In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license. There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.) When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition. In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted. The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn. Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation. After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence. There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case. Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues. Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge. It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978). Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling. It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
Findings Of Fact Petitioner is the prevailing party in charges of medical malpractice initiated against him by Respondent herein. (Stipulation) Petitioner is a small business party as defined in Section 57.111, Florida Statutes. (Stipulation) No special circumstances exist which would make the award of fees and costs unjust. (Stipulation) Reasonable attorney's fees and costs exceed the maximum of $15,000 authorized to be awarded in these proceedings. (Stipulation) The initiation of the proceedings which resulted in an administrative complaint being filed naming Eric Grosch, M.D., as a party respondent followed disciplinary action instituted against Dr. Grosch by the Peer Review Committee at Humana Hospital, St. Petersburg, Florida, following the hospital death of a 74-year old female patient of Dr. Grosch. The investigator assigned to this case interviewed numerous witnesses at Humana Hospital, notified Dr. Grosch of his inquiry, and submitted an investigative report to the Department of Professional Regulation (DPR) with medical records. On the basis of this investigative report and medical records, an administrative complaint was prepared by DPR, and the investigative report with medical records was forwarded to the members of the Probable Cause Panel (PCP) with a recommendation to obtain an expert opinion on the standard of care issue. This panel met on January 19, 1990. At this meeting of the PCP, the panel members voted to refer the records to an expert who would submit his opinion on whether the evidence supported malpractice on the part of Dr. Grosch. By letter dated January 23, 1990, the hospital records and uniform complaint form were forwarded to Dr. Braunstein, who is board certified in the field of internal medicine, for his review and opinion as to whether Dr. Grosch failed to treat the patient 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. By letter dated April 13, 1990, Dr. Braunstein submitted his opinion that in the treatment of the subject patient, Dr. Grosch failed to adhere to the requisite standard of care. The investigative file, medical records and Dr. Braunstein's opinion were referred to a different PCP on June 2, 1991, for a determination if probable cause existed to file an administrative complaint. After having reviewed the evidence presented, this panel voted to proceed with the charges in the administrative complaint. During the meeting of this PCP, one of the members raised the question as to whether the administrative complaint addressed an issue relative to the alteration of some medical records by Dr. Grosch. DPR staff members at the PCP meeting agreed to look into the altering records issue and, if found warranted, to refer this issue back to the PCP. The administrative complaint and records were forwarded to Bruce Lamb, the DPR attorney assigned to prosecute the case. After reading the investigative report and interrogating the various witnesses named in the investigative report, Mr. Lamb found a conflict in the medical records discharge summary and the observations of witnesses regarding the administration of a sedative to the patient during the intubation process. The witnesses recalled the sedative being proposed after the intubation started, while the Respondent's discharge summary stated the sedation was given before the intubation was started. As a result of this discrepancy in the medical records and witnesses' versions of the sequence of events, Mr. Lamb prepared a proposed Amended Administrative Complaint adding factual paragraphs 20 and 21 and Counts 3 and 4 charging the filing of a report known to be false and making deceptive, untrue or false representations related to the practice of medicine. This Amended Administrative Complaint with investigative report, medical records and expert opinion was presented to a third PCP on October 12, 1990, and the panel voted to amend the original administrative complaint to include the additional counts shown in the proposed Amended Administrative Complaint. At the hearing on November 6, 1990, DOAH Case No. 90-4808, Dr. Grosch, Respondent, admitted factual allegations 20 and 21 in the Amended Administrative Complaint, and witnesses to testify to these facts were not called.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed osteopathic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found probable cause to suspect that the licensee has committed one or more disciplinable offenses. At all times material to this proceeding, Respondent was licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 10658. Background On February 3, 2012, T.S., a 26-year-old single mother, presented to Respondent's medical office as a new obstetrical patient. At that time, T.S. was carrying her third child. For the next five months, T.S. and Respondent enjoyed what was, by all appearances, a productive and appropriate physician-patient relationship. However, as discussed below, Respondent would transgress the bounds of that relationship during an office visit on the evening of July 11, 2012. First, though, it is necessary to sketch the relevant background. On the morning of July 11, 2012, T.S.——who was then nine months pregnant——appeared at Respondent's office for a routine examination. During the visit, T.S. advised Respondent that she was experiencing substantial cramping and discomfort. In response to these complaints, Respondent performed a pelvic examination and a sonogram, both of which yielded normal results. Later that day, at approximately 4:00 or 4:30 p.m., T.S. telephoned Respondent's office and informed his staff of a new symptom: namely, that significant pain was making it difficult to lift her right arm. Although a member of the staff advised T.S. that she could be seen immediately, logistical constraints made it impossible for her to report to Respondent's office prior to the close of business. Over the course of the next several hours, T.S. communicated with Respondent by phone and text (his cell number was available to all patients) concerning the new symptom and her preference to be seen that evening. Ultimately, Respondent informed T.S., via a text message sent at approximately 6:15 p.m., that she could meet him at his office for an examination. The Misconduct T.S. arrived at the office at 6:30 p.m., whereupon Respondent unlocked the front door and invited T.S. inside. Upon entering the lobby area, which was only partially illuminated, T.S. saw no sign of Respondent's office staff. At that point, Respondent asked T.S. to sign a form that read as follows: I give consent to be seen at Dr. Miller's office, by Dr. Miller, without an assistant present, at my request, in order to have a medically urgent need addressed. The foregoing document, although signed by T.S., is of dubious propriety, as obstetrical treatment without a chaperone present is rarely, if ever, appropriate.3/ This issue is of no moment, however, for most of what occurred next——as established by the credible testimony of T.S. and Petitioner's expert witness——was not a legitimate medical examination but, rather, nonconsensual sexual contact perpetrated under the guise of an examination. Upon the execution of the "consent" document, Respondent directed T.S. to an examination room and informed her that the likely cause of her arm pain was either a clogged milk duct or the positioning of the fetus. Respondent then requested that T.S. disrobe her upper body, at which point he left the room for a few moments. Upon his return, Respondent asked T.S. to recline on the examination table, purportedly so he could examine her right breast to rule out the possibility of a clogged duct. T.S. complied and, for the next 30 to 45 seconds, Respondent squeezed her breast in a manner quite dissimilar to examinations she had undergone in the past. In particular, T.S. thought it peculiar that Respondent "cupped" her entire breast with his hand——as opposed to examining the breast from the outside in with the pads of his fingers.4/ Even more troublingly, Respondent asked T.S., while his hand was still in contact with her breast, whether "it felt good."5/ After removing his hand from T.S.'s breast, Respondent remarked to T.S. that her arm pain was not the result of a clogged milk duct. Respondent further stated that her symptoms would be assuaged upon the baby's delivery, an event which, according to him, could be facilitated by sexual activity. Before proceeding further, it is important to note that T.S.'s symptoms of arm pain arguably warranted, at most, a legitimate breast examination. In other words, there were no symptoms or aspects of T.S.'s history that justified a pelvic examination at that time,6/ particularly since Respondent had performed such a procedure (along with a sonogram) earlier in the day. Nevertheless, Respondent informed T.S. that he "needed" to measure the dilation of her cervix; then, in a disturbing and conspicuous departure from accepted obstetrical practice,7/ Respondent applied lubricant to one of his ungloved hands. Moments later, Respondent inserted two fingers into T.S.'s vagina and, for the next 30 seconds or so, positioned his penetrating hand in such a manner that his thumb was in continuous contact with T.S.'s clitoris——something that would never occur during a proper examination.8/ Tellingly, this was not the only physical contact incongruous with a legitimate pelvic examination, for at one point Respondent used his free hand to pull on one of T.S.'s nipples.9/ By now suspicious of Respondent's conduct, T.S. attempted to maneuver her body toward the head of the examination table. As she did so, Respondent began to remove his fingers from T.S.'s vagina while stating that she "needed to have sex" in order to induce labor. This could be accomplished, Respondent further suggested, by having sex with him, an invitation T.S. sensibly declined.10/ On the heels of this rejection, Respondent told T.S. that the only other means of inducing labor would be to "strip her membranes." Owing perhaps to an urgent desire to give birth——the reader should recall that she was nine months pregnant and in significant discomfort——T.S. acceded to Respondent's suggestion. Respondent then penetrated T.S.'s vagina with his (ungloved) hand for a second time and, prior to the removal of his fingers, repeatedly implored T.S. to engage in sexual intercourse with him.11/ When T.S. refused and tried to move to the other end of the table, Respondent grabbed her by the hips and pulled his midsection into her exposed vaginal area. By virtue of this aggression, T.S. could feel that Respondent's penis, albeit clothed, was erect.12/ Wishing to extricate herself from this situation, T.S. pushed Respondent away, at which point he attempted to "laugh off" his abhorrent behavior. T.S. dressed herself and, a short time later, drove to the home of an acquaintance to seek advice. Later that evening, T.S. made a report of the incident to the appropriate authorities,13/ which ultimately resulted in the filing of the Complaint at issue in this proceeding. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Respondent is guilty of violating section 459.015(1)(l), as charged in Count I of the Complaint. It is further determined, as a matter of ultimate fact, that Respondent is guilty of violating section 456.072(1)(v) and, in turn, section 459.015(1)(pp), as alleged in Count II of the complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Osteopathic Medicine finding Respondent guilty of Counts I and II of the Administrative Complaint; revoking Respondent's license to practice osteopathic medicine; and imposing a fine of $10,000.00. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
