Findings Of Fact Respondent, Santiago F. Suarez (Suarez), was at all times material hereto licensed as a physician in the State of Florida, and held license number ME 0030132. Suarez is a family practitioner, and has no specialized training relating to the human eye. He has never performed a refraction or prescribed eyeglasses during his medical career, nor has he had any training or experience in prescribing and fitting contact lenses.1 Commencing in the latter part of 1983 and continuing through the early part of 1984, Suarez acted as the supervising physician for Reynaldo Avello (Avello) when he performed refractions or fit contact lenses on clients of the Optical Medical Center; a business owned by Avello. During this time period, Avello routinely refracted the vision of his clients; measured the eyes of clients who desired contact lenses; prescribed eyeglasses and contact lenses; and prepared, dispensed or fit eyeglasses and contact lenses for his clients as well as clients of optometrists and ophthalmologists. Avello is not, and never has been, a licensed optician or optometrist, and he has no formal education or training beyond high school. Consequently, his activities were proscribed by law unless they were appropriately delegated and supervised by a medical doctor.2 Chapter 463 and 484, Part I, Florida Statutes. In this case Avello, not Suarez, prescribed eyeglasses and contact lenses. Avello conducted the eye examination, but limited his practice to refracting the eye and, when appropriate, to measuring the eye for contact lenses. Although Avello was ostensibly practicing under Suarez' supervision, Suarez was not competent to perform a refraction, or to prescribe and fit eyeglasses and contact lenses. In fact, Suarez took no active part when client's eyes were refracted, but deferred to Avello's "expertise." Suarez limited his involvement to securing a brief medical history from the client, and being available in case an emergency arose.3 Suarez' reliance on Avello's "expertise," without inquiring as to his training and experience, was a serious error in judgment. The only training Avello had in refracting the human eye occurred while he was employed part-time by the Union Latina clinic in Hialeah, immediately before he opened the Optical Medical Center. During his employment at the clinic, Avello was shown how to do a refraction by a board qualified ophthalmologist, but he never performed any refractions under that ophthalmologist's supervision. In March 1980, Avello opened the Optical Medical Center. With the exception of the period during which Suarez supervised Avello, the center has always had in its employ a board qualified or certified ophthalmologist. During those times, all eye examinations were performed by the ophthalmologist, and Avello did no refracting. While Avello considers himself qualified to do refracting, the proof regarding his training and experience renders his opinion unpersuasive. At no time was he shown to have worked under the supervision of a qualified practitioner, and no qualified practitioner was shown to be familiar with the quality of his work. Further, Avello was not shown to have had any qualified training or experience in measuring the human eye; prescribing eye glasses and contact lenses; or preparing, dispensing, and fitting eyeglasses and contact lenses. Accordingly, the proof established that Suarez accepted and performed professional responsibilities which he knew he was not competent to perform, that he assisted an unlicensed person to practice medicine contrary to law, and that he delegated professional responsibilities to a person he should have known was not qualified to perform them. The proof further established that the existent community standard required that a complete eye examination be performed before eyeglasses or contact lenses could be prescribed, and that such standard was breached. Suarez' failings could have resulted in profound adverse consequences to those patrons who were ostensibly refracted and fitted under his supervision. Improperly fit eyeglasses can result in blurred vision and nausea. More importantly, improperly fit contact lenses can result in permanent visual damage to the eye. In mitigation, Suarez avers that he agreed to supervise Avello out of a sense of personal obligation, not profit; that his employment was to be for the limited time it took Avello to secure the services of another physician; and, that when he undertook to supervise Avello he believed such activity to be legal. Suarez also offered for consideration in mitigation the fact that he cooperated in the investigation of the Optical Medical Center, and the fact that he had never previously been disciplined. Suarez' plea in mitigation is largely unpersuasive. While he may have undertaken Avello's supervision out of a sense of personal obligation, it was not without the expectation of compensation. Suarez and Avello had agreed, that if their association proved profitable, he would be compensated for his services. Notably, while Suarez' desire to fulfill a personal obligation is admirable, its priority is far below that owed to those to whom he professed to render a professional service. In this case, Suarez' supervision permitted an unqualified person to render professional services that he, as a medical doctor, was not qualified to perform, and therefore not qualified to supervise. No physician could reasonably believe such conduct was appropriate.4 Suarez' assertion that his association with Avello was to be of limited duration is not only irrelevant, but contrary to the proof. Suarez supervised Avello for 1 1/2 years, and there was no showing that Avello or Suarez made any effort during that period to hasten his replacement. Notably, during his association with Avello's business, the front of the store proclaimed in bold guilding "Optical Medical Center, Santiago F. Suarez, M.D." Under the circumstances, the proof does not suggest that their association was to be casual or of short duration.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The medical license of Respondent, Santiago F. Suarez, be suspended for a period of one (1) year, and that during the period of such suspension Respondent be required to complete such courses as the Board of Medicine may require to demonstrate an adequate comprehension of professional ethics, scope of practice for a family practitioner and delegation of professional responsibility; and An administrative fine in the sum of $2,000.00 be ~ assessed against Respondent, Santiago F. Suarez. DONE and ORDERED this 15th day of September, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1987.
The Issue 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.
Findings Of Fact 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. 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 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. 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. 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. 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. 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. 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. 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. 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.) 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. 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.
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 =================================================================
Findings Of Fact The following facts are based upon the stipulation of the parties (Exhibit 1): Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Massachusetts in 1979. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Connecticut in 1980. Petitioner, KAREN G. THIBODEAU, was an apprenticed optician with various licensed opticians in the States of Massachusetts and Connecticut for the past four to five years. Petitioner, KAREN G. THIBODEAU, on or about May, 1980, while living and employed in Connecticut, made a telephone call to the Board of Opticians in the State of Florida, with reference to her eligibility in taking the examination for a dispensing opticians license. After Petitioner detailed her formal training and work experience, she was advised that she was qualified to take the Florida Opticians Examination as the result of her having been licensed in both the States of Massachusetts and Connecticut and having five years apprentice experience. The Board of Opticians then mailed her an application form which she filled out and returned to them with a seventy five dollar ($75.00) money order for the examination and twenty dollars ($20.00) to register with the State of Florida. As a direct result of this telephone conversation with a representative of the Board of Opticians of the Department of Professional Regulations of the State of Florida, the Petitioner, KAREN G. THIBODEAU, quit her job in Connecticut and moved to Florida anticipating taking the aforesaid examination. After she had moved to Florida in reliance of the representations made to her by the Board of Opticians, she was notified that she was not qualified to take the said examination. Petitioner's application was considered by the Board of Opticianry on July 10, 1981 in Tallahassee, Florida and it was found that the Petitioner, KAREN G. THIBODEAU, did not meet the statutory requirements of s. 484.007(1), Florida Statutes (1979), although at the time she contacted the Board, she did meet the requirements of s. 484.03, Florida Statutes (1977), which was the prior licensing statute for the Board of Opticianry and was no longer in effect at the time. The Board further held that they did not have the authority to admit Petitioner, KAREN G. THIBODEAU, into the examination .for licensure as an optician in the State of Florida since she did not qualify under the current statute, s. 484.007(1), Florida Statutes (1979), even if they felt she had relied on the Board's prior representations that she would be allowed to take the examination to her detriment. The sole issue for consideration at this hearing is whether the Board of Opticianry has the authority to allow the Petitioner, KAREN G. THIBODEAU, to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board of Opticianry is estopped for asserting the new statute as a denial of her right to sit for the next exam since she has detrimentally relied on their representation that her qualifications under the old statute, s. 484.03, Florida Statutes (1977), qualified her to sit immediately for said examination." The following are additional Findings of Fact based upon testimony adduced at the hearing: When Petitioner made her telephone call to the Board of Opticians in May, 1980, she asked to speak to one of the Board members, but was assured by a woman who answered the phone that she could answer any questions Petitioner might have concerning her qualifications. At this time, Petitioner informed the person taking the call that she planned to move to Florida if she was qualified to take the examination for a dispensing optician license. Petitioner thereafter moved to Florida and is now employed by Sheppard Optical at Delray Beach, Florida where she is earning $200.00 a week. She was making approximately $300.00 a week when she left Connecticut and anticipated a higher income when she commenced practicing under her opticians license in Connecticut. (Testimony of Petitioner) Prior to the consolidation of the various state licensing boards into the Department of Professional Regulation in 1979, the practice of the Board of Opticianry, under the apprentice requirements of Section 484.03, Florida Statutes, (1977) was to permit individuals who had apprenticed in another state, but not in Florida, for the specified time of not less than three years, to register with the Board, and then make application for and take the examination for licensure. This was frequently done by means of telephone calls authorizing the individual to make application. In some cases, letters were sent which contained a similar authorization. Subsequent to Petitioner's telephone call to the Board in May, 1980, the new Executive Director of the Board of Opticianry, Herbert F. Varn, changed this practice to conform to the applicable statute which requires individuals to register as an apprentice with the Board and not admit such individuals to examination until after they had thereafter completed the requisite three year period of apprenticeship. In some isolated cases, the Board had permitted individuals who had previously received a letter authorizing them to take the examination, even though they had not been registered in Florida for the requisite three year period, to take the examination. However, after reorganization, the Board did not permit individuals to take the examination based solely upon any oral assurances received from persons in the prior Executive Director's office. (Testimony of Varn) The order of the Board of Opticianry, dated September 2, 1981, denying Petitioner's application stated that she had not met the statutory requirements for licensure by examination pursuant to Section 484.067(1), Florida Statutes, because she had not completed the requisite two school year course of study in a recognized school of opticianry, had not actively practiced as a licensed optician in another state for more than three years preceding the application, and had not registered as an apprentice with the Department and served not less than a three year apprenticeship under appropriate supervision. The present Executive Director of the Board is of the opinion that there would be no detriment to the public if Petitioner was allowed to sit for the examination based on her prior training and experience, but acknowledges that this is a matter for Board determination. (Testimony of Varn, pleadings)
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of January, 1996.
Findings Of Fact At all times material to this proceeding, Respondent was and remains a licensed optometrist in the State of Florida, having been issued License No. 000595. Respondent's present address is 4636 North Dale Mabry, #619, Tampa, Florida 33614. The Respondent, prior to relocating his office to Tampa, Florida, practiced optometry in Tallahassee, Florida, in an office adjacent to the Pearle Vision Center in the Governor's Square Mall. He closed that office the last week of December, 1980. Treatment of Wendell Harrison The Respondent first saw Wendell Harrison on October 11, 1980. At that time, Respondent was offering a special of $59.00 for three visits which included an examination and prescription, contact lenses, and the fitting of those lenses. The first of the three visits was the initial examination and prescription. The second visit occurred after the patients received their lenses, and the third visit was a follow-up visit for the purpose of ensuring that the lenses were fitted properly and there were no problems. On October 11, 1980, Mr. Harrison was examined by Dr. Hunter and given a prescription for contact lenses. On that date, Mr. Harrison paid the Respondent $40.00 of the $59.00 total charge. On October 22, 1980, Mr. Harrison received his contact lenses and returned to the Respondent's office for his second visit. During that visit, he was shown how to insert the lenses and also saw a film on how to care for the lenses. At this time, he paid the $19.00 balance of the total charge of $59.00. Subsequent to the second visit, Mr. Harrison experienced blurred vision and pain, especially in his left eye. He returned to Dr. Hunter and informed him of the blurred vision and pain. Dr. Hunter made no examination of Mr. Harrison's eyes or the lenses and informed him the lenses would tighten up and that he should continue to wear them. Mr. Harrison continued to have problems and returned to Dr. Hunter's office the first week of January, 1981. The office was closed. Mr. Harrison did not recall seeing a sign in the window or door of the closed office, but was informed by someone employed at the Pearle Vision Center next door that Dr. Hunter had left and that a Dr. Ian Field was handling problems with Dr. Hunter's patients. Mr. Harrison then made an appointment to see Dr. Field. After an examination, Dr. Field told Mr. Harrison not to put the lenses back into his eyes and not to use them. Dr. Field wrote a prescription for new lenses and refitted Mr. Harrison with the new lenses. Mr. Harrison experienced only minor problems in getting used to the new lenses and had no problem with blurred vision with the new lenses. The prescription of the lenses prescribed for Wendell Harrison by Dr. Hunter was improper in that the lenses corrected the vision in his right eye to only 20/40 which is the minimum for driving a vehicle in Florida. The left eye was corrected only to 20/40 and three additional letters on the next line of the chart. The lenses were also improperly fitted to Mr. Harrison's eyes, and as a result, moved around too much and would ride up underneath the upper lids of his eyes. By letter dated February 3, 1981 (see Petitioner's Exhibit 3), Mr. Harrison contacted Dr. Hunter and requested a full refund of his $59.00 fee. Dr. Hunter responded by letter dated February 9, 1981 (see Petitioner's Exhibit 4) and refunded with that letter $9.00 of the $59.00 paid by Mr. Harrison. Treatment of Maureen Sue Woodward Sometime in the Fall of 1980, Maureen Sue Woodward visited the office of the Respondent in Governor's Square Mall for the purpose of an examination and fitting of contact lenses. On the first visit, Ms. Woodward was examined by Dr. Hunter and was given a prescription for contact lenses. She took the prescription next door to Pearle Vision Center to have the prescription filled. Ms. Woodward, on the first visit, was quoted a price of $75.00 for three visits and this is the amount she paid Dr. Hunter. The three visits were to consist of first, an examination and prescription, secondly, the actual insertion and instruction on care of the lenses, and lastly, a follow-up visit to make certain there were no problems. After she received her contact lenses, she returned to Dr. Hunter's office for instruction on how to insert them and care for them. She watched a film about the cleaning of the lenses. Following the second visit, she wore the contacts just as she had been instructed to wear them and began to experience problems. Her eyes were bloodshot, burning, and tearing as a result of the contact lenses. Ms. Woodward returned to Dr. Hunter's office a third time and explained the problems she was experiencing. Dr. Hunter performed no examination of her eyes or the lenses but told her she was not cleaning them properly. She returned home and continued to clean the lenses as prescribed in the written instructions she had been given by Dr. Hunter and continued to have the same problems of bloodshot eyes, tearing, and burning. Dr. Hunter had told her to come back if she had any further problems. When she returned to Dr. Hunter's office in early January, 1981, the office was closed and there was a note on the door of the closed office referring patients to Dr. Ian Field in the Tallahassee Mall. Her third visit with Dr. Hunter had been approximately a week earlier and he had not mentioned the possibility that he might be leaving Tallahassee. The only information given by the note on the door was that Dr. Hunter's patients were referred to Dr. Field. On January 7, 1981, Mrs. Woodward was seen by Dr. Ian Field. The contact lenses which had been prescribed by the Respondent had an improper prescription. Prescriptions for contact lenses are in plus or minus. A prescription at zero has no prescription at all and is clear glass. A nearsighted person needs something for distance and requires a minus prescription and a farsighted person requires a plus prescription. The power of both lenses prescribed by Dr. Hunter for Mrs. Woodward were more plus than they should have been. When Mrs. Woodward saw Dr. Field on January 7, 1981, she was continuing to wear the contacts prescribed by Dr. Hunter. She was also experiencing blurred vision and bloodshot eyes. Her right eye felt scratchy. Treatment of Barbara Magnusson Stathos The Respondent examined Barbara Magnusson Stathos and prescribed contact lenses sometime prior to September 29, 1980. The agreed fee was $59.00 for three visits and Ms. Stathos had her second visit with Dr. Hunter on September 29, 1980, after picking up her contacts. After receiving her contacts Ms. Stathos experienced problems and called Dr. Hunter's office. She spoke with Dr. Hunter at that time. She continued to have problems and when she returned to Dr. Hunter's office, he had left the area. Barbara Stathos was then seen as a patient by Dr. Walter Hathaway, an optometrist, on January l7,1981. She was using a liquid chemical method of disinfectant for the lenses Dr. Hunter had prescribed for her. Thirty to forty percent of the population has an allergic reaction to these particular chemical disinfectants. There were deposits and coatings on the lenses which had been prescribed for Barbara Stathos by Dr. Hunter. Dr. Hathaway replaced her lenses and switched her to a heat disinfectant method. This solved her problem. The problem of coatings and deposits on her lenses would not have corrected itself. Such a condition would have required an optometrist to correct it. Treatment of Marianne Topjian On December l2, 1980, Marianne Topjian was given a prescription by Dr. Hunter for contact lenses. Subsequent to December 12, 1980, she received her contact lenses. On January 8, 1981, Marianne Topjian saw Dr. Ian Field. She was having problems with the contact lenses prescribed by Dr. Hunter. These lenses had an improper prescription in that they did not correct her vision for close work. The lenses should correct for distance as well as close work. Standard of Care and Requirement for Due Notice The standard of care for optometrists in the Tallahassee community in 1980 and 1981 required proper follow- up care in order to ensure that contact lenses fit properly, that the prescription was proper, and that the patient was not experiencing any problems requiring correction by the optometrist. The follow-up care includes necessary examinations to determine the source of any problems being experienced by the patient. Some degree of follow-up care is required with every patient who is fitted with contact lenses by an optometrist. The standard of care in the Tallahassee community, as well as the nation, requires that when a physician leaves his practice and relocates to another community, he must give notice to his patients and make certain that patients under his active care are taken care of by another optometrist. The relocating optometrist must also make arrangements to make the records of his patients available to them. Neither Wendell Harrison nor Maureen Woodward were given notice by the Respondent that he was leaving Tallahassee and relocating elsewhere. Wendell Harrison and Maureen Woodward were under his active care at the time Dr. Hunter left Tallahassee, and no proper arrangements were made by Dr. Hunter for the follow-up care for the problems that these two persons had complained about. Dr. Hunter saw Maureen Woodward approximately one week prior to his departure, and he did not inform her that he was considering leaving Tallahassee. Prior to leaving Tallahassee, the only arrangements made by Dr. Hunter involved one phone call with a Dr. Orb who planned to move into Dr. Hunter's office in Governor's Square Mall. Dr. Orb agreed generally to take care of any of Dr. Hunter's patients, but no specific financial arrangement was made for such treatment and no specific patients experiencing current problems were discussed. Dr. Hunter did not know when Dr. Orb would be moving into the office, and there was no evidence that he called Dr. Orb in Tallahassee after his departure to determine if Dr. Orb was, in fact, caring for his patients. No arrangement at all had been made with Dr. Ian Field. The Respondent was negligent and fell below the standard of care in the community by failing to provide proper follow-up care to Wendell Harrison. The Respondent specifically failed to examine Mr. Harrison and take appropriate steps to determine the cause of the blurred vision and discomfort complained of by Mr. Harrison on his third visit Having been made aware by an active patient that the patient was having ongoing continuous problems with the new contacts, the Respondent failed to make arrangements upon his departure from Tallahassee to ensure that Mr. Harrison would receive the necessary care to correct his problems, if they continued. As a result of failing to provide proper follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Mr. Harrison. The Respondent was negligent and fell below the standard of care in the community in his treatment of Maureen Sue Woodward by failing to provide her with proper follow-up care after she was fitted with contact lenses by the Respondent. After Maureen Woodward complained of bloodshot eyes, burning and tearing, the Respondent did not perform an examination of her eyes or contact lenses in order to determine the cause of these problems. Having been made aware of these problems, he did not make proper arrangements upon his departure from Tallahassee to ensure that Ms. Woodward would receive the necessary follow- up care to correct these problems in the event that the problems continued. By failing to perform the appropriate examinations and to provide the appropriate follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Maureen Woodward. There was insufficient evidence to show that the Respondent breached any standard of care in the community with regard to his treatment of Marianne Topjian and Barbara Magnusson Stathos. Neither of these patients testified in the administrative proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of Counts 6, 8, 9, and 11 of the First Amended Administrative Complaint and that he be required to pay an administrative fine of $1,000. It is further recommended that the Respondent be placed on probation for a period of six (6) months subject to such conditions as the Board deems appropriate to ensure that the Respondent is completely familiar with and follows the requirements for proper follow-up care with patients being fitted with contact lenses. It is recommended that Counts 1 through 5, 7, 10, and 12 through 16 of the Administrative Complaint be dismissed. DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Daniels, Esquire 127 East Park Avenue Tallahassee, Florida 32302 Ms. Mildred Gardner Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent Hagen violated Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code, by allowing his license to be used by an unlicensed person to engage in the occupation of dispensing optician without his presence and direct supervision. Whether the license of Respondent Hagen should be revoked, annulled, withdrawn or suspended for violation of Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code.
Findings Of Fact Respondent Wayne L. Hagen, the licensed optician in the Pearl Vision Center, Tyson Square Mall, St. Petersburg, Florida, holds License No. 180, a license in good standing, issued by the Florida Board of Dispensing Opticians pursuant to Chapter 484, Florida Statutes. The Board in formal meeting on March 28, 1975, directed Mr. Allen R. Smith, Jr., a coordinator for the Department of Professional and Occupational Regulations, Division of Occupations, to file the subject Administrative Complaint against Respondent Hagen. The charge in the Complaint is the violation of Rule 21P-4.01, Florida Administrative Code, in that an unlicensed person engaged in "dispensing optical goods while Mr. Hagen was absence for the premises". Respondent received a copy of the Administrative Complaint, Explanation and Election of Rights containing notice that said Complaint was mailed the 29th day of April, 1975. Respondent had no notice by certified mail or actual notice of these proceedings or an opportunity to show that he had complied with all lawful requirement for the retention of his license, prior to the receipt of the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that no notice prior to the mailing of the Administrative Complaint, Explanation and Election of Rights was sent to Respondent giving notice of the facts or conduct which are delineated in the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that prior to the initiation of the Administrative Procedures Act in former proceedings the Board had given notice of receipt of Complaints against licensees. Respondent Hagen had posted in the office of Pearl Vision Center signs indicating that no fittings or adjustments would be made while Respondent was off duty. The unlicensed employee of Respondent, Lynda Vickers, performed acts in violation of the Rules and Regulations of the Board without the knowledge or permission of Respondent and was discharged prior to the filing of the Complaint against Respondent. Respondent did not allow his license to be used by an unlicensed person to engage in the trade or occupation of dispensing optician without his presense and direct supervision. Respondent through his attorney moved to dismiss the Complaint on the grounds that the Board of Dispensing Opticians failed to give him prior notice and and an opportunity to rectify in accordance with the requirements of the licensing statute, Section 120.60(4), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer. Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED. Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
