The Issue Whether Respondent, a licensed physician, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of medicine in the State. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and practiced in the specialty of ophthalmology. Respondent's license, number ME 0022716, expired while this matter was pending. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent who thereafter timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed. Shortly after filing the request for hearing Respondent's whereabouts became unknown to Petitioner. Despite diligent search and inquiry, Petitioner was unable to locate Respondent. Notices mailed by the Division of Administrative Hearings to his last known address were returned. Constructive notice of the hearing in this matter was given to Respondent by publication. In May 1991, Respondent worked at Lucy Optical Store in the Little Havana section of Miami, Florida. On May 13, 1991, Augustin Garcia, an investigator employed by Petitioner appeared at Lucy Optical Store in an undercover capacity. Mr. Garcia posed as a patient who complained that he was having difficulty seeing at night and that lights were causing him to have headaches. Mr. Garcia requested an eye examination. After discussing his complaints, Respondent led Mr. Garcia from the waiting room to an examining room. On May 13, 1991, Myriam Garcia Lacayo was working at Lucy Optical Store as Respondent's medical assistant. Ms. Lacayo is not licensed by the Petitioner in any capacity. While Respondent was present in the examining room, Ms. Lacayo performed a refraction test on Mr. Garcia's eyes. Upon completing the refraction test, Ms. Lacayo told Mr. Garcia that he did not need glasses and instructed Mr. Garcia to return within nine months to a year for a follow-up examination. Ms. Lacayo further advised Mr. Garcia that he should wear non- prescription eyeglasses with a light tint for night driving. Mr. Garcia was not told by anyone that he had not been given a complete eye examination. After the examination was completed, Mr. Garcia revealed his true identity and requested the medical records that had been taken, including a prescription that Mr. Garcia had seen Respondent write. Respondent became very upset upon learning Mr. Garcia's true identity and refused to give him the prescription. The manager of Lucy Optical Store gave Mr. Garcia the medical record, consisting of a one page document, that had been generated as a result of his visit. Respondent failed to administer to Mr. Garcia appropriate tests for glaucoma or for cataracts. The standard of care requires that a patient such as Mr. Garcia be evaluated for glaucoma and cataracts when the patient requests a complete eye examination. Failure to perform these tests may falsely reassure the patient that his eyes have been fully examined and found to be healthy. If these tests are not performed, the ophthalmologist should explain to the patient that he had only had a refraction test and not a complete eye examination. Respondent practiced below the standard of care in failing to test Mr. Garcia's eyes for glaucoma and cataracts. Respondent's medical records fail to document any reason why appropriate tests for glaucoma and cataracts were not performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner assess an administrative fine in the amount of $5,000.00 against Respondent and require that Respondent demonstrate that he has the present ability to practice medicine with the requisite degree of skill and safety prior to the renewal of his license to practice medicine in the State of Florida. IT IS FURTHER RECOMMENDED that his licensure be placed on probation for a period of two years if it is renewed. DONE AND ENTERED this 3rd day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January 1995.
Findings Of Fact Respondent was issued a license to practice medicine in Florida in 1973, and was so licensed at all times relevant to this proceeding. He received his doctor of medicine degree in Korea in 1946, and a doctor of philosophy degree in physiology and pharmacology in Canada in 1951. His practice combines conventional medicine and acupuncture. About May, 1980, Respondent contracted with Robert Sample, M.D., to purchase the latter's medical practice in Bradenton. Until the downpayment was made, it was agreed that Respondent would use Dr. Sample's name in referring to the practice and would represent himself and his wife, Dr. Lee (who is also a licensed medical doctor) , as associates of Dr. Sample's. Although Dr. Sample was to retire and leave the area, Respondent agreed to tell patients that Dr. Sample was on vacation. For a period of one to two months after assuming the practice, the telephone was answered "Doctors Sample, Lee and Cho." Doctor Sample's sign at the entrance to the office was not removed until Respondent obtained a new sign without Dr. Sample's name about 30 days after he began practicing at this location. Although the patients who called or came in to this office were, in fact, misled by the continuing reference to Dr. Sample, there was no evidence to indicate that any patient believed he was to be treated by Dr. Sample. Wilma Dona Stover was a patient of Dr. Sample's for approximately 2 1/2 years, while also seeing a physician in. Cincinnati, Ohio, for periodic checkups following lung cancer surgery in 1974. On June 16, 1980, she sought the medical advice of Dr. Sample regarding a severe facial rash. Upon telephoning the office of Dr. Sample, she was told by the receptionist that Dr. Sample was out of town, but was asked if she would care to see either of the two doctors: who were now in practice with Dr. Sample. She made an appointment for that day and was seen by Respondent. After a brief inspection of the rash, Dr. Cho employed a device known as a dermatron machine" to select medication. Respondent explained to Mrs. Stover that by comparing the electromagnetic fields of various medications with that of the body, the best medicine could be chosen. To conduct these tests, Respondent placed a wire on the middle toe of Mrs. Stover's right foot. She held a probe-like device in one hand and in the other hand she held, fan. turn, various medicines enclosed in containers. The medicine chosen was neosporin. Because of her previous experience with lung cancer, Mrs. Stover questioned Dr. Cho whether the rash could indicate a recurrence of this disease. In response, Dr. Cho again employed the dermatron machine with a connection placed on the middle finger of her right hand. Thereafter, Respondent informed Mrs. Stover that she did not have long. cancer. Because of her disbelief in these procedures, Mrs. Stover consulted Dr. David Krull, a family practitioner After Physically examining Mrs. Stover (scalp, skin, ears, throat, lungs, heart and abdomen plus laboratory tests- CBC, blood sugar and urine), Dr. Krull prescribed medication for the skin rash. He later performed a series of tests to determine if she was suffering a recurrence of lung cancer. Mrs. Stover's testimony established that Respondent administered no physical examination or history taking prior to prescribing neosporin for Mrs. Stover's rash. Further, Respondent made no tests to determine whether or not she was suffering a recurrence of lung cancer other than the measurements he made with the dermatron machine. Dr. Krull did not find a recurrence of lung cancer, but was able to make this determination and reassure Mrs. Stover only after a full physical examination which included checking her lungs, lymph nodes, neck and reading her chest x-rays. Another board-certified family practitioner in the Bradenton community, Robert E. Blackwood, M.D., a physician who has practiced in that community for 10 years and who was not associated with the treatment of Mrs. Stover, confirmed the testimony of Dr. Krull concerning the minimum history and physical examination that must occur prior to treating the skin rash and diagnosing the nonrecurrence of lung cancer. It was stipulated by the Petitioner and Respondent at the formal proceeding in this matter that the dermatron machine utilized in the diagnosis and treatment of Mrs. Stover by Dr. Cho was not registered or approved under the Federal Food, Drug and Cosmetic Act for use as a medical diagnostic device. No written consent for the use of the machine or the diagnostic procedures was obtained from Mrs. Stover by Dr. Cho. Chris Robbins has resided in Bradenton for several years and was a patient of Dr. Sample's until he retired from his Bradenton medical practice. On July 28, 1980, Robbins injured his back and called the office of Dr. Sample. The telephone was answered, "Dr. Sample, Dr. Lee and Dr. Cho." , He made an appointment and was seen in an examination room by Respondent Dr. Cho who was informed as to how he had injured his back. No medical history was taken nor was a physical examination performed. Respondent explained that he proposed to treat the disorder through the use of acupuncture, and Robbins agreed Respondent placed needles behind Robbins' ears and injected Vitamin B-12. This treatment alleviated the pain. Respondent then instructed Robbins to pass a magnet up and down behind his ears (to cause an electrical response in the nerve) if the pain recurred, and to return to the office within a week. On August 4, 1980, Robbins returned as instructed. He had experienced pain in his back during the previous week but use of the magnet had relieved the pain. Respondent administered further Vitamin B-12 shots and instructed Robbins to continue wearing the needles in his ears. On approximately August 14, 1980, Robbins returner to Respondent's office after experiencing further back par. Respondent administered Vitamin B- 12 shots, and placed small needles behind the knuckles of Robbins' hands, and in his feet. This relieved the pain. However, Robbins returned later the same day with a recurrence off the back pain. Respondent then placed the patient face down on an examination table and injected further Vitamin B-12 shots in his back. Respondent informed Robbins that his back could be dislocated and discussed the possibility of treatment by a chiropractor. At this final visit, Respondent prescribed demerol, 100 mg, 10 tablets for pain. No x-rays were taken during any of these visits. Robbins continued to experience pain and was thereafter seen by Mario Quintero, M.D., at the emergency room of a local hospital. Dr. Quintero's testimony established that the minimum medical examination which must be conducted by a physician in the treatment of back injury would include x-rays and range of motion tests. An independent expert., Robert Blackwood, M.D., confirmed this as the minimum medical examination which must be conducted with history as established by Robbins. This minimum medical examination was further confirmed by Dr. Gary Dunlap, the medical expert retained by Dr. Cho. Dr. Quintero referred Robbins to an orthopedic specialist, Dr. Thomas Sprenger, who administered a physical examination, which included the reading of x-rays and the other hospital reports. He determined that Robbins was suffering from a back sprain and prescribed muscle relaxants and bedrest. In August, 1980, Kimberly Perdue, 18 months of age, injured her eye with a sharp object. Her grandmother, Jean Harless, took the child to the office of Respondent and his wife, Dr. Lee. Dr. Lee, who has had training in ophthalmology, first examined the injury. She diagnosed a corneal abrasion and determined that intramuscular and oral antibiotics should be utilized together with a topical application of antibiotic ointment. Dr. Cho was informed of her findings and she left to treat another patient. Respondent determined that he would use penicillin (duracillin, a form of penicillin with an effectiveness of 48 hours) intramuscularly, and tetracycline syrup for the oral antibiotic. He selected neosporin as a topical ointment for infection. Respondent injected the duracillin. He administered the neosporin tonically and covered the patient's eye with a patch. He prescribed the tetracycline syrup for later use. Just prior to leaving the medical office of Respondent, Mrs. Harless was asked to complete a patient history and medical information form. Later that day, Mrs. Harless took Kimberly to Salvatore Cantolino, M.D., a board-certified ophthalmologist, who diagnosed an abrasion. Dr. Cantolino's testimony established that a family practitioner should at minimum take an accurate history of a child prior to instituting care involving antibiotics. His testimony further established that intramuscular antibiotics and oral antibiotics were unnecessary in this situation, and that these antibiotics could have harmed this child due to possible adverse side effects, reactive risks and the fact that the antibiotics might complicate the diagnosis of any subsequent eye infection. Dr. Robert Blackwood's testimony confirmed the opinion of Dr. Cantolino regarding the inappropriate prescription of antibiotics by Respondent.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Respondent be placed on probation for a period of two years, during which he would be permitted to practice only under the supervision of a physician designated by the Board of Medical Examiners. It is further RECOMMENDED that Respondent's license be restricted to prohibit the diagnosis and treatment of patients except as noted above until he has demonstrated to the Board of Medical Examiners that he is capable of practicing medicine with reasonable skill and safety to patients. It is further RECOMMENDED that Respondent be fined $1,000. DONE AND ENTERED this 4th day of March, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 4th day of March, 1982.
The Issue The issue for consideration was whether Petitioner was properly denied licensure as an optometrist based on the examination taken by him on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues herein, the Board of Optometry has been the state agency responsible for the licensing of optometrists in Florida. On September 16 - 18, 1988, Petitioner, Kenneth W. Gerke, O.D., took the optometry examination administered at the Department's Miami Examining Center. He failed both the practical examination and a clinical examination, and passed the pharmacology/ocular examination with a grade of 72 and the Florida law/rules examination with a grade of 96. No evidence was introduced to establish what the pass/fail point was for each section of the examination. Thereafter, Respondent requested a review of his scores and on February 28, 1989 he was again notified he had failed the examination though his pharmacy/ocular score was raised to 73.7 and his clinical score was raised to Petitioner then filed a request for a hearing to contest specifically the grade he received on questions 4 & 10 of the clinical examination, Part I, and questions 2, 10, 14, 15, and 16 of the clinical examination, Part II. In his initial request for review, submitted on December 3, 1988, Petitioner did not cite specific questions, asking only that the test results of the practical examination taken on September 18, 1988 be reviewed with special emphasis on that portion of the practical which dealt with tonometry. Petitioner thereafter challenged Examiner 11's grading of question 4, Clinical I, and Examiner 13's grading of question 10, on Clinical I. With regard to the former, Petitioner claims the examiner did not fill in the bubble, thereby depriving him of 1 point. This discrepancy was corrected on review, however, and Petitioner was awarded credit. With regard to the latter, Petitioner was given full credit for the entire question on review. The combined increase did not give him a passing score. With regard to question 2, Clinical II, Petitioner questions Examiner 60's evaluation of his answer, contending the disc was clearly visible and should have been seen by the examiner since the other examiner, 54, who was working in pair with Examiner 60, did see it. Review of the evaluation sheet pertinent to this question reveals that Examiner 60 gave Petitioner no credit, indicating he did not see the disc. Examiner 54, his partner, gave Petitioner credit but, in the comments section of the form, indicated, "not a very good view." On review, examination officials decided to make no change in Petitioner's grade because even Examiner 54, who had given Petitioner credit for having performed the disc, indicated it was not a good view, and on that basis, they could find no basis to change examiner 60's evaluation. Petitioner presented no evidence to show that decision was in error. Petitioner challenged Examiner 54's evaluation of his answer to question 10, Clinical II, indicating, "I did focus on optic disc and estimate C/D ratio (the other examiner saw it and awarded full points). It was very clear to me and I cannot understand why the examiner did not see it." In this case, Examiner 60 gave Petitioner full credit for his answer, but Examiner 54 gave no credit. When examiners disagree, generally examination officials look at the Examiner comments individually. If it is impossible to sustain the negative comments, the negative evaluation is rejected and the applicant is given full credit. Even if the dispute cannot be resolved, partial credit is usually given, and in this case, initially, Petitioner was given half credit. However, upon review it was determined that his challenge to the grade given by examiner 54 on this question had merit, and he thereafter received full credit for the question. This did not give him a passing score, however. With regard to question 14, Clinical II, Petitioner challenged both Examiner 60 and Examiner 54, since both gave him no credit for his performance of the procedure, a Goldman tonometry. Examiner 54 commented that Petitioner "ran out of time" and Examiner 60 commented that he could see no "mires". Petitioner's challenge reads, "My patient was tearing profusely. I applied fluorescein strip and attempted the pressure measurement. There were no mires due to excessive tearing of patient washing out fluorescein. I dried the patient's tears, reapplied another fluoresceins strip, and was retaking the pressure when time ran out. I believe the timer was not set correctly to allow me a full two minutes." This procedure requires the candidate to anesthetize the patient's eye, apply a fluorescein dye, and thereafter measure pressure by evaluation of "mires" observed through the instrument. Resolution of this question involves a study of the background of the examination. So much of the examination as is contained in Part I is conducted with the candidate performing certain procedures on a patient provided by the examination officials. Part II of the examination involves observation of procedures accomplished on a patient provided by the candidate. The patient is first evaluated by examination officials to determine that he or she is qualified to serve and one eye is dilated by examination officials at that time. Thereafter, the patient is released to the applicant who performs the procedures required under the observation of the two examiners assigned to him. In the case of question 14, the procedure requires the candidate to demonstrate accurate measurement of intra-ocular pressure. He is required to anesthetize the eye, apply a fluorescein dye by means of a strip dipped into the substance, and thereafter measure pressure by the use of an instrument which is gently placed against the patient's eyeball and through which "mires" are observed. Petitioner's patient was unknown to him at the time he performed the procedure. Because he did not know anyone to take as his patient, prior to the examination he contacted an optometrist in Miami whose secretary's boyfriend was recommended as a patient. Petitioner accepted him and used him and the patient was qualified as a bona fide patient. Petitioner contends, however, that for various reasons, the patient's eyes teared excessively washing out the fluorescein dye which would have provided the "mires" for observation. Before he could get additional dye into the eye and remove the excess, time ran out. He also claims that he was not given the full two minutes to accomplish the procedure. Both examiners denied Petitioner credit for his performance of this procedure. On review it was felt that Petitioner did not overcome the negative comments of the examiners. Further, Petitioner failed to follow the procedure which he should have invoked at the time, a description of which was included in the examination description and study guide provided to him prior to the examination and which was verbally briefed to him the day of the examination. He should have notified his examiners at the time he noticed the excessive tearing. Under the protocol for this examination, those examiners would not have made a determination at the site but would have brought the problem to the supervisor for review. Petitioner also could have filed a card when he left his station to formally register the complaint - not while the patient is still present, but to be reviewed afterward. There is no indication here that either examiner brought Petitioner's problem to the supervisor because Petitioner did not bring it to their attention. In addition, Petitioner did not fill out a comment form about the problem as he could have done when leaving the area. If he had notified the examiners of the problem, they would have stopped the evaluation at that moment. The complaint procedure is designed to insure the applicant gets a fair and full chance to demonstrate his ability. Petitioner failed to utilize it. Consequently, even on review he was awarded no credit for this question. Petitioner also challenges Examiner 60's evaluation of his response to question 15, Clinical II, and contends: I did provide a good view of the angle structures. My patient had wide open angles clearly visible. The evaluation sheet reflects that both Examiners 54 and 60 gave Petitioner no credit for this question. Examiner 54 commented that Petitioner failed to describe "scleral spur" and Examiner 60 commented, "Poor to no view." On review, it was determined that neither examiner initially gave credit and that there was no evidence presented by Petitioner which would cause a change to that lack of award. Based on the evidence presented at the hearing, it is found that Petitioner has failed to demonstrate a basis for change to the score of "0" given him on question 15. Petitioner also challenges Examiner 60's response to question 16, Clinical II, claiming: I did estimate the pigment deposition. The examiner may have had a poor view (as in other parts) but mine was clear. (The other examiner had a clear view and awarded full points.) Review of the evaluation sheets reflects that Examiner 54 gave Petitioner full credit for this procedure and he was originally awarded 2 points. The examination sheet filled out by Examiner 60 reflects, "No credit. Poor to no view." On review, the award of 2 of 4 points was not overturned. At the hearing, Petitioner engaged in a substantial dialogue with the Board's consultant, Dr. Attaway, as to whether the examiners' view of the applicant's performance could have been affected by either the placement of the "teacher's" mirror, through which the examiners observed the procedure, or the examiners' position with regard to the mirror. Dr. Ottawa conceded that both contingencies could affect the evaluation and in light of the fact that Examiner 54 gave full credit with no adverse comment, and his opinion has been held to be highly esteemed in other incidents involving this Petitioner, it must be concluded that Petitioner's accomplishment of the required procedure was done properly and he should be awarded the additional 2 points. In each case during the examination, the candidate is observed by two examiners. It is not uncommon for examiners to disagree. Between 85 and 88 percent of the time, they agree on their evaluation of a particular candidate's procedure. In the instant case, however, the area of disagreement was somewhat higher. When this happens, generally it means the candidate is borderline; neither clearly very good nor clearly very poor. With regard to the pressure test, (Goldman tonometry), measured in procedure 14, the Board's consultant, agrees that not all patients can be evaluated for pressure utilizing this method, also known as aplination tonometry. In the instant case, the evidence showed that the patient had had his eye dilated upon reporting for qualification more than an hour prior to the accomplishment of the procedure. In the course of the qualification and the procedure evaluations, he had been examined by numerous people. This is not an unusual set of circumstances in an examination situation. It would, however, prolong the procedure and certain individuals tear more than others. As a result, it is possible that in these circumstances, the patient would excessively tear and the fluorescein dye used to present the mires could wash out, giving an improper reading. Here, one examiner indicated he was unable to identify or observe any mires. If the probe used to measure pressure were touching the eye and no mires were presented, that would mean there was no dye left on the eye. However, if the probe was not touching the eye, there would be no mires presented even if there was dye in the eye. Petitioner's witness, Dr. Perry, an expert in ophthalmology, has often had dye wash out of an eye because of excess tearing and has often had difficulty in getting a pressure reading. It can quite often take longer than the 2 minutes allowed during the examination for the procedure and is sometime impossible to get under any circumstances. Aplination tonometry is not a difficult procedure to learn and its use is not reserved to ophthalmologists or optometrists. Routinely, technicians are easily taught to perform it and do so on a repeated basis. Petitioner has worked for an ophthalmologist in the Sarasota area for 5 years as a technician and has done many of the procedures on which he was tested during the examination in issue. Petitioner has done thousands of aplination tonometry procedures and in fact, has performed the procedure on Perry. In those cases of which Dr. Perry is aware, including his own, the procedure was done properly. Dr. Parry agrees that the time limit of 2 minutes allotted at the examination is not unrealistic in the normal situation. However, the procedure often takes more than 2 minutes to perform, and when it does, that fact is usually indicative of a problem with the patient, not the tester. Based on his personal experience with Petitioner's demonstrated ability to properly perform the aplination dynamotor procedure, he is "flabbergasted" that Petitioner had problems with it during the examination. There is more than one way to apply fluorescein dye to an eye for the purpose of pollination dynamotor. One is to apply the fluorescein by strip and the other is to apply a mixture of dye and anesthetic by dropper. The latter method requires a 30 to 60 second wait after application to allow the excess solution to wash out. However, that procedure was not used in this examination, and the strip, which allows immediate application of the probe and observation of mires, was. In the instant case, the patient's eye had been dilated for over an hour when the examiner placed the anesthetic in the eye to be examined and told Petitioner to begin. Petitioner started immediately but was unable to get a mire even though he saw the glow in the patient's eye which indicates the probe was touching the eye as appropriate. When he checked the equipment and found it to be operating properly, he realized that the dye had washed out of the eye because of the tearing and he was attempting to begin the process again when the examiner indicated he had run out of time. Though Petitioner claims the amount of time he was given was improperly measured, he is unable to establish that by any independent evidence. When he asked the examiners for a second opportunity, allegedly he was advised, "Don't worry about it. It's only one question." After the examination, he thought about filing an objection card but, since he claims to have been advised by another optometrist, "not to make waves", he decided against it. Petitioner claims that the examination was fatally flawed for several reasons. The first is that Examiner 60, he claims, was routinely different and more strict with him than was Examiner 54. Rebuttal evidence presented by Ms. Loewe, the examination specialist, indicates, however, that for this examination, Examiner 60 generally graded higher than others across the board. Petitioner also claims that the routine order of tests was not as recommended by experts. Generally, certain procedures are to be accomplished in a certain sequence in a routine examination. Petitioner overlooks, however, that regardless of the sequence of procedures, the examination was not a routine "patient" examination but an examination of the applicant's ability to perform the procedures in question. The considerations dictating a certain sequence in a clinical examination may not be pertinent to the sequence appropriate for a candidate examination, and this argument is without merit. Petitioner also questions the anonymity of the candidate which prevents a knowledge of the candidate's other background and unexamined qualifications. Anonymity is designed to allow a candidate to demonstrate for examiners the substance of his knowledge and skill, is routine, and is found to be appropriate. Further, he claims the location of the examination, the time limit, and the other factors surrounding the conduct of the examination promote nervousness in the candidate and hinder the candidate in his performance of the required procedures to the best of his ability. There was no independent evidence to support this contention or to demonstrate that had the examination been conducted under other circumstances, Petitioner or any other examinee would have performed differently. There are legitimate reasons for the actions taken by the Board, considering the way the examination was conducted. Admittedly the order of tests to be given is not included in the study guide, and the applicant would not know in advance in what order the procedures would be accomplished, but he would have advance information as to which procedures would be examined. Petitioner also pointed out that the patient upon whom he performed the procedures was a stranger to him and that because of his unfamiliarity with the patient and his background, he sustained a handicap more severe than the other candidates. This contention is without merit. All new patients are strangers to the optometrist when they first come for examination. In any case, the candidate is not being asked to treat a patient, but to demonstrate his ability to properly accomplish certain procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's scores on the September 16 - 18, 1988 optometry examination, as revised prior to hearing, be sustained except for that awarded in Question 16, Clinical II, and that he be awarded an additional two (2) points for his performance of that procedure. RECOMMENDED this 19th day of July, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989. COPIES FURNISHED: Kenneth W. Gerke, pro se 1831 Mid Ocean Circle Sarasota, Florida 34239 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Lawrence A. Gonzalez Secretary DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Kenneth A. Easley, Esquire General Counsel DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Optometry 1940 N. Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Michael Davis, was licensed as a Doctor of Chiropractic in Florida. Respondent treated Karen D. Moss from December 14, 1984 to January 25, 1985 and pursuant to his treatment, maintained certain records of that treatment. Ms. Moss first met the Respondent when she was going to massage school. In December, 1984, she was involved in a serious automobile accident and, when she failed to feel better afterwards, was referred to him by a co-worker, Ms. Madison. When Ms. Moss first went to Dr. Davis, she had already seen another physician for approximately four weeks and was dissatisfied with the treatment rendered by him. At the time of her first visit with Respondent, her right knee was swollen and felt like it needed to be cracked. Her neck could not be turned and her back was always stiff. She had sharp pains in her neck and constant pain in her right shoulder. Respondent, as a part of his treatment, prescribed massage by Ms. Madison and took one set of x-rays of his patient. He also, in the course of his treatment, used an ultra-sound machine which Ms. Moss could not describe, but even after going to see Respondent for several weeks, three to four times a week, she concluded he was not giving her what she needed and decided to seek yet a third doctor. When she terminated her visits to Dr. Davis, in her opinion, she was not only not improved, but even felt worse. At the time of her last visit with Dr. Davis, on January 25, 1985, she told him she was switching to another physician. At this time, Dr. Davis did not tell her that she had reached maximum medical improvement and recommended, to the contrary, that she continue to come see him. Ms. Madison, who recalls that several weeks after Ms. Moss began treatment with the Respondent, she left him advising Ms. Madison that she was not getting any better. When Ms. Moss first visited Dr. Davis, she filled out a form for him listing her complaints and her history as she knew it. She contends that she listed her back, neck, and right leg injury on the form but review of the form she filled out does not reflect any knee injury though constant knee pain is listed. At the time she filled the form out, she was emotionally unstable and merely wanted to get treatment. She was in pain and did not take a lot of time in filling out the form. To this day, two to three years later, though she has improved and credits this improvement to the treatment she received from other physicians, she still suffers from some of the complaints she had when she was a patient of Dr. Davis. Ms. Moss's records were reviewed by Dr. Robert S. Butler, a chiropractic physician in practice in Miami Shores, who examined them as an expert for the Board of Chiropractic Examiners. In his review, Dr. Butler found no record of a comprehensive medical examination being completed on Ms. Moss or that Dr. Davis took an adequate personal history. The initial examination on December 14, 1984, was not described adequately on any records and the case history form filled out by the patient does not appear to contain any personal entries by the Respondent. His entries appear to include only what appears in the narrative summary produced subsequent to the taking of the history. Any form filled out by a patient should be the basis for the doctor to use to inquire further of the patient in taking a case history. This was not done here by Dr. Davis except very briefly on the first page of the form and it cannot be determined from looking at that who put the entries there. Dr. Butler cannot say, therefore, that the physical examination supposedly accomplished by Dr. Davis was comprehensive as billed to the insurance company by the doctor. After reviewing the doctor's records on Ms. Moss and cross referencing them with each other, Dr. Butler at first found some of them to be repetitious but on closer examination, it appears that the dates do not coincide. There are also several discrepancies which, in and of itself, is not uncommon. In this case, however, the records are so full of discrepancies as to be beyond the common experience. His review of Respondent's progress notes failed to reveal any specificity. Assuming that the records Dr. Butler looked at were contemporaneous with treatment, they are not adequate for a prudent chiropractic physician's minimum standards and he was unable to determine a proper relationship between the diagnosis done by the Respondent and the billings submitted to the insurance company for services reportedly rendered. Dr. Butler was also concerned that the narrative report prepared on the computer for the insurance company contains much information not documented elsewhere in the records, such as blood pressure, pelvic findings, and recitations of procedures done. He is also concerned over an indication of weakness on the part of the patient without evidence of muscle testing. This type of record keeping is not customary and is, in his opinion, not good practice. Even Dr. Brown, Respondent's expert, indicated that when he keeps records on his patients, he marks down almost every test result he receives. Admittedly, he does not necessarily put in all negative findings, but very definitely lists all positive findings. He utilizes a sheet of conditions on which he checks off those the existence of which is shown and it is from this form, along with others, that he prepares his narrative summary. He agrees in essence with Dr. Butler that it is not acceptable practice for a physician to write a report to an insurance company indicating that a patient has reached maximum medical improvement when this conclusions is based on matters outside the patient record. Here, Dr. Butler concluded that the records completed on Ms. Moss by the Respondent are sufficient with regard to format but not as to content. He would not put in narrative form matters which are not documented in the backup forms and the evidence here, the records kept by Respondent, reflect many conclusions in the narrative submitted to the insurance company which are not backed up by test results recorded on exam forms. In light of the fact that both experts agree that Respondent's records were inadequate, it is so found. Dr. Butler examined the records that were furnished to the Department's investigator by Dr. Davis after some substantial reluctance and obfuscation on his part was overcome. In response, Dr. Davis contends that at the time the records were sought of him, he did not produce all of the records he had on Ms. Moss because of the nature and manner in which the subpoena was served and because the subpoena only asked for certain documentation. He contends, however, that he offered his entire file to the investigator, Ms. Pagett, who copied only certain records therefrom indicating that was all she needed. Review of the documentation submitted at the hearing, however, which was all that was submitted by either party, and which was examined by Dr. Butler, leads to the inescapable finding that the records kept by Respondent are minimal at best and appear to fall short of the minimum standards set for the chiropractic profession. Dr. Butler's testimony satisfies the Petitioner's requirement to go forward with the evidence and Respondent has failed to produce any evidence to counter the conclusions drawn by Dr. Butler which are adopted herein as to the sufficiency of the records. The Administrative Complaint alleges that on February 26, 1985, Respondent filed a report with Ms. Moss's insurance company indicating she had reached maximum medical improvement. Dr. Davis admits this was the case but contends that in his professional judgement, she had in fact reached that status at that time and there was nothing more that he could do for her to increase or improve her physical condition. Dr. Butler, concluded after evaluation of the records, that maximum medical improvement had not been reached and from the records, he cannot determine what standards the Respondent applied to reach the conclusion that he had. The patient still had symptoms which needed treatment and in light of the injuries sustained by Ms. Moss, the likelihood is slight that she would have reached maximum medical improvement within the six week period that Dr. Davis was treating her. Dr. Butler concedes that a physician has the obligation to report maximum medical improvement status when that status is reached, but here, he feels, the determination was premature. This no more than a professional difference of opinion, however. Dr. James E. Brown, a chiropractor practicing in Palm Beach Gardens also reviewed the records kept by Respondent on Ms. Moss and as a result of his review concluded differently. He is of the opinion that the Respondent's records on Ms. Moss are adequate and within standards. He feels they would support a conclusion of maximum medical improvement as well. In this regard, Dr. Brown states that the achievement of maximum medical improvement is not based merely on a period of time but on the condition of the patient's body. In the instant case, maximum medical improvement was achieved in a very short time under the Respondent's care. The patient was indicated as being pain free when she left Respondent's care and one does not properly continue to treat patients whose condition is as it was described in Respondent's records. In short, Maximum medical improvement can be reached when a patient is not completely healed and still has a continuing condition. He agrees with Dr. Butler to the effect that definition of the term "maximum medical improvement" is subject to varied interpretations by different physicians and he admits that even if the records show that a patient is pain free, if the patient still has stiffness, continued treatment would be given if there were indications that the patient was still in need of it. Here, neither Dr. Butler nor Dr. Brown examined Ms. Moss. Both relied solely upon the written records kept by Dr. Davis. Ms. Moss, however, still maintains that when she left Dr. Davis's treatment, she was still in pain and, in fact left, because she felt his treatment was not benefiting her. By itself, that might well mean she had reached maximum medical improvement because the experts both agree that an individual may still have pain but have reached the maximum improvement. However, Ms. Moss also relates that when she went to another doctor who continued to treat her, she did improve rapidly as a result of that treatment and it is found, therefore, that Dr. Davis's report of Maximum medical improvement upon Ms. Moss's leaving his care, was, for whatever reason, premature. During August, 1985, Dr. Davis also treated Teresa L'Heureux who had been injured in an automobile accident. As a part of the treatment of Ms. L'Heureux, Dr. Davis issued three prescriptions for a drug, Flexoril. The first two, those written on August 30, 1985 and September 20, 1985, were on prescription pads bearing the printed name of Dr. Sultana and the doctor's rubber stamp signature. The third prescription, on October 12, 1985, was a phone-in prescription which does not bear the name of any physician. Respondent contends that he wrote these prescriptions at the order of Dr. Sultana who had seen the patient prior to the day the prescriptions were issued and directed him to issue them using her prescription pad and a rubber stamp of her signature. Dr. Sultana, on the other hand, denies ever having seen Ms. L'Heureux as a patient; denies having written the prescriptions; denies having signed her name to them; and denies having authorized Respondent or anyone else to stamp them with her signature. What is more, she does not recall having ever called in the third prescription. Dr. Sultana admits to having discussed the matter with Detective Brown who was conducting an investigation into the matter and having told him that she does not stamp her prescriptions. She does not recall admitting to Detective Brown that she had a stamp. In fact, she does not have a stamp of her signature, has never used one, and denies ever having told Respondent to utilize a rubber stamp of her signature in writing prescriptions. Dr. Sultana did some work with the Respondent and served as his mentor in the field of psychiatry. She admits that, as Respondent claims, if it were true that she had called in prescriptions without having seen a patient and were to have allowed Respondent to affix her stamped signature to a prescription for a controlled drug, she could be in severe difficulty with licensing authority. However, she contends she is not denying it for that purpose but because she did not do what Respondent alleges she did, and her testimony, contradicted only by the attacks of the Respondent and his assertion that she did allow him to use her prescription pad as alleged, is accepted. Further, the note taken from what appears to be patient records bearing her apparent signature and ostensibly relating to Ms. L'Heureux, is an obvious forgery in that the note refers to another patient and has been excised from records improperly with an inaccurate date and name placed thereon. Comparison of the handwritten signature of Dr. Sultana on the note with that on the stamped prescriptions and the computer printout indicates that the signatures are dissimilar. It is concluded, therefore, that the stamp signature is not that of Dr. sultana but a forgery instead. Dr. Davis is also alleged to have improperly examined Ms. L'Heureux during a visit she made to his office on December 17, 1985 by, in the course of an examination for a bladder infection, placing his fingers in her vaginal area without first donning rubber gloves and by moving his fingers in and out of her vaginal area making sexually suggestive comments to her while doing so. He is also alleged to have provided unnecessary treatment based on his record of diagnosis and treatment of the patient. Ms. L'Heureux came to see Dr. Davis in October, 1985 after she was involved in a car accident. She had heard his advertisement on the radio and went to see him for relief, During the course of his treatment, he applied heat, electrical muscle stimulation, traction, and adjustments. Ms. L'Heureux claims that on one occasion during a manipulation, while she was laying on her stomach, Dr. Davis placed his hand in between her legs and told her to move. This made her uncomfortable. On another occasion, when he came back into the room after being absent for a moment, he commented that something smelled good. Neither of these actions is considered actionable, however, absent any further evidence of impropriety. On one visit, however, she complained to the Respondent of having urinary problems. She had brought the matter to the attention of the Respondent's technician previously and had been advised to provide a urine sample. When the Respondent came into the area where she was waiting, she mentioned it to him and he had her go back into the examining room where he advised her to take off her pants and examined her. At this time, there was no other female present in the building. During the course of the examination, without using gloves, he pushed with his hands on her lower abdomen and then inserted his fingers inside her. She claims that while doing this he asked her how long it took her to climax and advised her of different ways of climaxing. When he was finished with the examination, he gave her a prescription for flexoril on Dr. Sultana's prescription pad and let her out the door. Ms. L'Heureux indicates that she had never been to a chiropractor before this series of treatments with Dr. Davis and therefore did not know what was appropriate for him to do. She does know, however, that she never met Dr. Sultana. During the course of Ms. L'Heureux' treatment, she saw Dr. Davis every day for the first three weeks and then for three weeks thereafter, every other day. Starting with the seventh week, for two months, she saw him every third or fourth day, returning to be treated by him even after the visit during which he conducted the pelvic examination. She finds it difficult to believe that she saw Dr. Davis for as many times as he billed her for, but she cannot dispute it. Her attorney, when she went to see him referred her to another chiropractor. She continued to visit Dr. Davis even after he did the inappropriate vaginal examination because she had no money and Respondent agreed to wait for her insurance company to pay. He was guiding her with regard to timing and kept telling her not to worry about the fee - that the insurance company would pay - and in fact, he was the one who referred her to an attorney. After she left him to seek the services of another chiropractor, he billed her for a total of $1,996.00 of which the insurance company paid only $600.00. Dr. Davis is suing her for the balance. Dr. Butler examined Ms. L'Heureux' records as well as those of Ms. Moss. At no place in Ms. L'Heureux', except for the narrative billing sent to the insurance company, is there any mention of testing for a urine problem. No lab reports are contained in the records and as a result, the records are deficient in that regard. The results should be reported to the patient at the next visit unless something is extremely wrong, in which case, the patient should be notified immediately. Dr. Butler examined those records of Ms. L'Heureux made available to him and was of the opinion that there was nothing in them to justify the diagnosis made by Respondent much less to justify the billings. He did contend, however, that the use of a medical doctor's signature stamp on a prescription pad would be totally improper for a chiropractor and Dr. Davis, who denies the vaginal examination ever took place, stipulates that a vaginal exam, such as alleged herein, would be an inappropriate diagnostic procedure for a chiropractor. Dr. Davis' reputation regarding his relationship with his patients is somewhat mixed. On the one hand, Ms. Madison, who has known and worked with him for several years, considers him to be a considerate individual who shows concern for his patients who seem to like him. At no time, while she was working for him, did he ever show any sexual interest in any patients and in fact was quite reserved. Others, such as Mr. Mackhanlall, agree. On the other hand, some, like Dr. Kastein, with whom Respondent had a business disagreement, think little of him, his professional capabilities, his ethics, and his personality. Dr. Davis contends that he interviewed and examined Ms. Moss, as alleged in her testimony but asserts, contra to her statement, that he took a personal history and x-rays of her. He claims he made up a chart as to the type 4of manipulation to be done and on each of the periodic visits she made to his office, made progress notes which, though minimal themselves, served to refresh his memory at the end of each day when he dictated into a computed program log, more extensive progress notes on each of the forty or so patients he saw that day. Most of the information placed into the computer in this fashion was from memory, however, and not from his hand-kept progress notes. This is not a system designed to generate much confidence in either his notes or his credibility. Respondent also relates that toward the end of January, 1985, Ms. Moss indicated that she had no more dizziness and in fact, felt better though she still had some stiffness. Finally, she came in and told him she was totally free of dizziness and pain and on January 25, 1985, said she was "ok" and feeling fine. A complete examination which he made that day, he claims, showed normal motion. Based on this examination, he concluded that she had reached maximum medical improvement and so indicated to her insurance company. In March, 1985, he was asked to submit a report to the insurance company which he prepared, based on the computer printout of his daily progress notes. At that time, he had received no information from Dr. Alden, the healer to whom Ms. Moss went after severing her relationship with Respondent, to the effect that she was treating Ms. Moss and no records were requested of him by the insurance company. When the DPR investigator contacted him, he claims he gave her what was requested; no more and no less. As to Ms. L'Heureux, he relates that when he initially examined her he gave her a complete orthopedic and neurological examination. Based on his diagnosis, he prescribed traction, ultra-sound and x-rays. Respondent avers that in August, 1985, Ms. L'Heureux indicated she was having pain and wanted to see Dr. Sultana. He apparently set this up because, he claims, shortly thereafter, Ms. L'Heureux indicated she wanted the prescription Dr. Sultana said she would get. He claims he called Dr. Sultana who directed him to give her the prescription for Flexoril using the stamp signature and pad in her desk drawer. The second prescription was also approved by Dr. Sultana according to Respondent, and he continued to treat Ms. L'Heureux until her attorney told her to see an orthopedic surgeon rather than a chiropractor. Dr. Davis categorically denied ever having conducted any vaginal examination of Ms. L'Heureux and claims that on the day in question, after she had deposited the urine specimen for analysis with his technician, she left the building and that was the end of that visit. Dr. Sultana denies ever having given permission to write prescription on her pad and denies having a stamp of her signature. Having evaluated the testimony of Dr. Davis in this regard, vis a vis the testimony of Ms. L'Heureux, Ms. Moss, and Dr. Sultana, it is clear that Dr. Davis's testimony is the less credible. Evaluating the witnesses and considering the relative probabilities, it is clear that the complainants are the more credible and there is no indication that any of them stands to gain anything by initiating unfounded complaints against him. It is therefore, found that, as to the writing of the prescriptions, Dr. Davis had no authority to write them utilizing Dr. Sultana's pad and a rubber stamp of her signature. As to the alleged incident with Ms. L'Heureux involving the improper pelvic examination, it is found that it did occur as alleged in light of the deposition testimony of Ms. Johnson, a former patient who indicated Respondent, in May, 1983, conducted a pelvic examination on her without first securing her consent. Turning, then to the ultimate issue of the sufficiency of the medical records kept on both patients in question here, Dr. Butler is convinced that the records are inadequate. Dr. Brown to a lesser degree agrees. Consequently, it is found that the records have been shown to be inadequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent's license as a chiropractic physician in Florida be revoked and he be fined a total of $8,000.00, but that so much of the penalty as calls for revocation of the license be suspended for two years under such terms and conditions as are prescribed by the Board of Chiropractic Examiners. RECOMMENDED this 19th day of June, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 19th day of June, 1987. COPIES FURNISHED: Edward H. Reise, Esquire Suite F 207 11173 N. Kendall Dr. Miami, Florida 33176-0917 Michael Davis, pro se 645 South Military Trail No. 9 West Palm Beach, Florida 33415 Erskine C. Rogers, III, Esquire 2875 South Ocean Blvd., Suite 200 Palm Beach, Florida 33480 Van Poole, Secretary Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation Board of Chiropractic 130 North Monroe St. Tallahassee, Florida 32399-0750 APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4108 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties hereto: By the Petitioner Petitioner's counsel, notwithstanding, the oral comments made by the Hearing Officer at the conclusion of the hearing regarding the format of the Proposed Finding of Fact, failed to number the paragraphs to facilitate identification herein. This has therefore been accomplished by the undersigned. Findings that at all times in issue, Davis licensed as a chiropractor in Florida, Findings of Fact's 1-29 relate to the 2nd Administrative Complaint. Findings of Fact's 30-46 relate to the first. The remainder go to the issue of the credibility of the Respondent as a witness and relate to both. Accepted and incorporated herein. Rejected as immaterial except as to the fact that after leaving Respondent's treatment, the patient was seen and treated by an osteopathic physician. 3-5. Accepted and incorporated herein. 6. Accepted and incorporated herein except for the last two sentences which are irrelevant. 7-9. Accepted and incorporated herein. 10. Rejected as not a Finding of Fact. 11-14. Rejected as not Findings of Fact but mere comment on the evidence. The ultimate finding that Respondent conducted an examination of S.J. is accepted. Irrelevant and cumulative. Rejected as an improper finding of fact. 18-20. Irrelevant. Rejected as a comment on the evidence and not a finding of fact. Accepted and incorporated except for the last sentence which is comment on the evidence and not a Finding of Fact. 23-25. Rejected as a summary of the evidence and not a Finding of Fact. Rejected. Rejected as a summary of evidence and not a Finding of Fact. 28-29. Rejected as a comment on the quality of the evidence, not a Finding of Fact. Accepted and incorporated herein. Accepted except for the last sentence which is a comment on the evidence and not a Finding of Fact. Accepted and incorporated herein. Rejected as irrelevant as a Finding of Fact. 34-38. Rejected as a summary of the evidence and not a Finding of Fact. 39-43. Rejected as a summary of the evidence and not a Finding of Fact. Accepted as to medical justification - Rejected as to nature. Accepted and incorporated herein. Rejected as a comment on the evidence and not a Finding of Fact. 47-48. Rejected as irrelevant. 49-50. Cumulative. 51. Rejected. For the Respondent Respondent does not identify Findings of Fact. Paragraph numbers start with 6. 7 a. Rejected as a summary of evidence. Accepted. Rejected as a summary of the witness's testimony. 9 a. Accepted. Accepted. Rejected as a summary of the witness's testimony. 11 a. Accepted. Rejected as contra to the weight of the evidence. Rejected as a comment on the evidence. d-g. Rejected as a summary of the evidence - not a Finding of Fact. 13 a-c. Rejected as a summary of the evidence. 15 a. Rejected as contra to the evidence. b-c. Irrelevant. 17 a. Accepted. Irrelevant. No evidence before the Hearing Officer. Not supported by evidence of record. e-f. Irrelevant. 19 a. Accepted that Sx 3 was a called in prescription. b. Rejected as comment on the evidence. c-f. Rejected as a summary of the evidence. Not proven. Accepted 21 a-b. Irrelevant c-e. Rejected as a summary of evidence and not a Finding of Fact.
The Issue Whether Proposed Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N- 6.006, constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Standing. The Petitioners, Medivision, Inc., and Tampa Surgi-Center, d/b/a Ambulatory Surgery Center, have standing to challenge the proposed rules at issue in these cases. See the affidavits of Larry Cyment and Donna McMillan. Intervenor, Florida Hospital Association, Inc., has standing to participate in these cases. See the affidavit of Pat Haines. The following Intervenors have established their standing to participate as intervenors in these cases through testimony or affidavit: Cataract Surgery Center, Cortez Foot Surgery Center, Ambulatory Surgery Center of Bradenton, Tampa Outpatient Surgical Facility, Naples Day Surgery, Ambulatory Surgical Center, Specialty Surgical Center and Tallahassee Single Day Surgery. Eye Surgery Center, The Eye Associates, FW Associates and Cordova Ambulatory Surgical Center have failed to prove their standing to participate in these cases. The Proposed Rules; Purpose and Adoption. The Health Care Cost Containment Board (hereinafter referred to as the "Board"), published Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N- 6.006 (hereinafter referred to as the "Proposed Rules"), in Volume 16, Number 12, of the Florida Administrative Weekly (March 23, 1990). The purpose of the Proposed Rules is to collect data concerning the provision of ambulatory surgery services in the State of Florida. Data collected by the Board will allow a comparison of patient charges and will create an additional bases for the analysis of trends in the health care field. In particular, data collection will promote the analysis of shifts in the provision of health care from inpatient to outpatient settings. Data concerning patient identity, geographic location, diagnosis, procedures performed and charges for services is required to be collected and submitted to the Board pursuant to the Proposed Rules. In June of 1989, the staff of the Board presented a study to the Board concerning the growth of ambulatory health care services. Staff recommended that the Board direct that steps be taken to explore the possibility of collecting ambulatory surgery data. The Board accepted the recommendation and appointed a Technical Advisory Panel. The Technical Advisory Panel appointed by the Board consisted of nine representatives of various interested groups. Two members were from freestanding ambulatory surgery centers and two members were from hospitals providing ambulatory surgery services. At meetings of the Technical Advisory Panel in July, August, September and October, 1989, the collection of ambulatory surgery services data was considered. The Technical Advisory Panel discussed collection costs, the type of data to be collected, implementation dates, legislative authority, methods of submitting data and the scope of data collection. The Board was made aware of the Technical Advisory Panel's efforts through minutes of the Panel's meetings and other materials provided to the Board. The collection of ambulatory surgery services data was considered by the Board at its October, November and December, 1989, meetings. The Proposed Rules were approved by the Board at its December, 1989, meeting. There is no statutory authority which specifically provides that data may be collected by the Board from "freestanding ambulatory surgical centers." The Board cited Section 407.03, Florida Statutes (1989), as the specific authority for the Proposed Rules. The Board cited Sections 407.003, 407.03 and 407.08, Florida Statutes (1989), as the laws implemented by the Proposed Rules. Scope of the Proposed Rules. Ambulatory surgery services are provided in a variety of settings: hospitals (e.g., acute care, psychiatric and rehabilitation), licensed freestanding ambulatory surgery centers, physician offices and other unlicensed health care facilities. The Proposed Rules provide that all licensed hospitals included in Groups 1 through 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual which provide outpatient surgery services and all licensed ambulatory surgery centers in Florida are required to collect and submit 45 data elements to the Board. Psychiatric hospitals and rehabilitation hospitals are not subject to the Proposed Rules. Physicians' offices and other unlicensed health care providers are also not subject to the Proposed Rules. The Proposed Rules are limited to licensed providers of ambulatory surgery services so that the Board's staff can insure that all members of the groups selected data actually collect and report data. The Board cannot insure that all unlicensed providers of ambulatory surgery services, such as physicians' offices, comply with the Proposed Rules. Therefore, if data was required to be collected and submitted by unlicensed providers, the data would be less reliable. The weight of the evidence failed to prove that the requirement of the Proposed Rules that only hospitals included in Groups 1 and 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual and licensed freestanding ambulatory surgery centers collect and submit data constitutes an invalid exercise of delegated legislative authority. Specific Data vs. Aggregate Data. The Proposed Rules require the collection and reporting of 45 specific data elements. Aggregate data concerning ambulatory surgery services could be obtained from insurance companies and used by the Board as an alternative to the more specific data required to be collected pursuant to the Proposed Rules. Aggregate data is a compilation of specific data. Aggregate data can be used to comply with the Board's statutorily required functions. If aggregate data is used, however, it is likely that reporting will be incomplete. Not all information is reported to insurance companies concerning outpatient activity. Therefore, aggregate data obtained from insurance companies would not cover 100% of ambulatory surgery services provided by reporting entities, resulting in the potential for presenting an incomplete or inaccurate picture of ambulatory surgery services. The recommendations and conclusions which can be reached from aggregate data are limited. Specific data allows more flexibility for research purposes. Specific data will assure greater accuracy and comparability of data. Recommendations and conclusions reached from specific data should be more accurate. In order to insure comparability of data, specific data concerning patients, geographic location, diagnoses, procedures and charges must be collected. The Board collected aggregate data concerning ambulatory surgery services through a special study. The Board collected the data from hospitals and, on a voluntary basis, from licensed ambulatory surgery centers. "Typical" charges for specified ambulatory surgery procedures was collected. This collection effort was flawed by the lack of specific data. The accuracy of the reports based upon the aggregate data was criticized publicly. The reports were even criticized by one of the witnesses called to testify by Intervenors, Cataract Surgery Center, et. al. The weight of the evidence failed to prove that the requirement of the Proposed Rules that specific data be collected and submitted instead of aggregate data constitutes an invalid exercise of delegated authority. Confidential Patient Data. Some of the data elements to be reported pursuant to the Proposed Rules constitute confidential patient information. Disclosure of confidential patient information is prohibited by Florida law. The Proposed Rules do not require or authorize disclosure of confidential patient information. The manner in which the data collected will be distributed has not yet been decided upon by the Board. The evidence failed to prove that the Board will not comply with prohibitions against disclosure of confidential patient information. The weight of the evidence failed to prove that the requirement of the Proposed Rules that confidential patient information be reported to the Board constitutes an invalid exercise of delegated authority. Computer Use. The Proposed Rules require that data be submitted by computer tape or computer diskette. Therefore, data will have to be input into a computer system. The Proposed Rules specify the format data must be in when submitted. Most of the language of the Proposed Rules is computer terminology. The terminology of the Proposed Rules will require some knowledge of computers to carry out the requirements of the Proposed Rules. The language of the Proposed Rules is intentionally designed to convey technical information. The general purpose and requirements of the Proposed Rules does not take any special knowledge to understand. Requiring the submission of data by electronic means is designed to assure the accuracy and confidentiality of the data. The requirement of the Proposed Rules that data be reported in computer form and the use of computer terminology does not constitute an invalid exercise of delegated legislative authority. Errors in the Proposed Rules. Proposed Rule 10N-6.002(2) defines "Ambulatory Surgery Services" as procedures "provided in a hospital in its dedicated ASC ..." [Emphasis added]. Instead of "ASC" the Board intended to use the terms "operating room." Proposed Rule 10N-6.005 contains a list of the data elements to be collected and reported to the Board. This Proposed Rule contains the following errors or unclear language: Item 20 is "Facility Fee - Pri. Proc." "Pri. Proc." is an abbreviation for primary procedure. Items 21-24, similar to Item 20, contains the abbreviation "Sec. Proc." instead of secondary procedure. Items 25-27 contain a reference to "Page 3". As published in the Florida Administrative Weekly, there is no page 3. Item 35, which deals with expected methods of payment, refers to "Comm. Ins. (incl. BCBS)." This reference is an abbreviation for commercial insurance (Blue Cross Blue Shield). Item 44, patient birth date, uses the abbreviation "MMYYYY." This abbreviation should be "MMDDYY." Proposed Rule 10N-6.006 refers to "Primary Diagnosis Code" and "Secondary Diagnosis Code." The Rule should refer to Primary and Secondary "Procedure" Code. The mistakes identified in findings of fact 38-40 are not significant enough to characterize the rule as vague. Nor are these mistakes sufficient enough to otherwise conclude that the Proposed Rules constitute an invalid exercise of delegated legislative authority. Economic Impact. The Economic Impact Statement (hereinafter referred to as the "EIS"), issued with the Proposed Rules provided the following concerning the economic impact of the Proposed Rules on the Board: ESTIMATE OF THE COST OF IMPLEMENTATION: The agency will be affected by the costs of rule promulgation and by the demands placed upon staff time to assure compliance with the rules and to analyze the data collected. Costs for these activities are estimated to be approximately $85,000 per year. The weight of the evidence failed to prove that this portion of the Board's EIS is unreasonable. The EIS provided the following concerning the economic impact of the Proposed Rules on persons affected by the Proposed Rules: ESTIMATE OF THE COST OF IMPLEMENTATION: Implementation by affected facilities will cost approximately $2.9 to $3.1 million. These funds will be used to develop the programs necessary to collect and submit the data required. On-going compliance will have a much less significant impact. . . . . ESTIMATE OF COST TO ALL PERSONS DIRECTLY AFFECTED BY THE RULE: The initial cost to Florida hospitals and freestanding ambulatory surgery centers (ASC) would be from approximately $2.9 to $3.1 million to develop the reporting system necessary to generate the necessary data elements. On-going annual cost to the hospitals and free standing ASCs would be substantially less after the first year's start-up procedures are adopted. . . . . The EIS is insufficient because it does not adequately discuss the costs (implementation and ongoing costs) to affected persons or the impact of the Proposed Rules on small business. The weight of the evidence proved that the Proposed Rules will have an economic impact on affected persons. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the implementation cost affected persons can be expected to incur as a result of the Proposed Rules. As indicated in the EIS, the Board's determination of the estimate of the economic impact on affected persons was based upon surveys the Board distributed to licensed ambulatory surgery centers, an estimate of costs that hospitals incurred in implementing the Board's detailed patient data collection rule, the Board staff's experience with computer costs (including the collection and entry of data) and consultation with a computer expert familiar with the Proposed Rules. The surveys relied upon by the Board were distributed to all licensed freestanding ambulatory surgery centers. A total of 91 surveys were distributed. The Board requested that the surveys be returned within one week. Forty-one responses to the surveys were received by the Board from licensed freestanding ambulatory surgery centers. The responses constitute hearsay. Findings of fact concerning whether the information contained in the responses is correct, therefore, have not been made. The responses to the surveys have, however, been relied upon to make findings of fact concerning what information the Board based its EIS on. The Board received the following pertinent responses to the surveys from licensed freestanding ambulatory surgery centers: (1) 26 of the responders use computers, 12 have no computer capacity and 3 have some computer capacity; 17 or 18 different software programs are in use; and, (3) the costs to implement the proposed collection of data ranged from $0 to $50,000.00. Twenty- six responders indicated that they did not know how long it would take for them to implement the proposed collection of data. The Board determined that the average implementation cost for licensed freestanding ambulatory surgery centers reported in the responses to its survey was $18,975.00 and that the average implementation time was 13 weeks. The Board rounded up the average cost reported to it in the surveys and estimated that the cost of implementing the Proposed Rules at licensed freestanding ambulatory surgery centers would be $20,000.00. Based upon the existence of 85 licensed facilities, the Board estimated the total implementation cost for licensed freestanding ambulatory surgery centers to be $1,700,000.00 ($20,000.00 x 85). The Board estimated that the maximum cost of implementing the Proposed Rules at affected hospitals would be $2.00 per patient record. This estimate was based upon the Board's estimate of the cost of hospital compliance with the Board's detailed patient discharge data rule. Based upon an estimate of 600,000 patient records a year which will have to processed as a result of the Proposed Rules, the Board estimated the total cost of implementation in affected hospitals to be $1,200,000.00. The Board concluded that the total minimum cost of implementing the Proposed Rules will be $2,900,000.00 ($1,700,000.00 cost for freestanding ambulatory surgery centers plus $1,200,000.00 cost for affected hospitals). The Board discussed the cost of implementing the Proposed Rules with J. Thomas Solano, an expert in computers. Mr. Solano estimated that the cost of modifying an existing computer system (small to mid-range computer) to comply with the Proposed Rules would be $4,000.00 to $10,000.00. The Board used the highest estimate, $10,000.00, and multiplied this cost by the number of affected persons (85 freestanding ambulatory surgery centers and 220 hospitals x $10,000.00). This resulted in a rounded-up estimated implementation cost of $3,100,000.00. The Board concluded that the total maximum cost of implementing the Proposed Rules will be $3,100,000.00. Some of the data to be collected and reported pursuant to the Proposed Rules is already being collected by affected persons. Therefore, the primary cost of complying with the Proposed Rules will be associated with modifying existing computer software and/or hardware. The cost of modifying an existing computer system can fluctuate widely. As a general rule, computer users with existing software must rely upon their existing software provider to make modifications. The cost of modifying software can, therefore, be much higher than Mr. Solano estimated. As an alternative to modifying existing systems, affected persons can acquire a freestanding personal computer and software which can be used to comply with the Proposed Rules. The cost of such an acquisition should be approximately $2,500.00 to $5,600.00. Intervenor, T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it will have to spend approximately $14,000.00 to $20,000.00 to implement the Proposed Rules. This estimate is based upon a letter purportedly from the Intervenor's computer company. The information contained in the letter is hearsay. The estimated implementation costs are, therefore, not supported by admissible evidence. The estimate, even if supported by competent substantial evidence, is within the Board's estimated implementation costs and, therefore, fail to prove that the Board's EIS is unreasonable or that the Board failed to fully consider the economic factors or impact. Intervenor, Cataract Surgery Center, estimated implementation costs of $1,900.00. This amount is limited to additional maintenance fees, supplies and personnel costs. Cataract Surgery Center believes there will no charge from its computer vendor to modify its software. Cataract's estimated costs are reasonable and within the Board's estimates. Ambulatory Surgical Center of Lake County (hereinafter referred to as "Lake"), does not own a computer. It uses the computer system of its physician owners. Lake considered more than one method of complying with the Proposed Rules. It considered buying a personal computer and estimated it would cost $5,000.00. This cost is consistent with the estimates of the Board. Lake also considered purchasing an integrated hardware and software package. It estimated that such a system would cost $40,000.00 to $50,000.00. The estimate is based upon hearsay. Even if the evidence concerning the cost of an integrated system is accepted as correct, the evidence fails to prove that such costs are necessary to comply with the Proposed Rules. The estimate for this system is based upon Lake's decision that it would perform other functions with the computer system, including storing management information and performing billing functions. These functions are not required in order to comply with the Proposed Rules. Lake currently treats approximately only 300 patients annually. The weight of the evidence failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the implementation cost which will be incurred by affected persons. The weight of the evidence also failed to prove that the inadequate treatment of implementation costs in the EIS was fully considered by the Board. Therefore, the treatment of implementation costs in the EIS constitutes harmless error. Although the primary costs to affected persons caused by the Proposed Rules will be associated with implementation of the Proposed Rules, there will also be certain costs associated with ongoing compliance with the Proposed Rules. There will be ongoing costs for the collection of data, entry of the data into a computer and reporting data to the Board. Ongoing costs caused by the Proposed Rules will be greater if an affected person with an existing computer system acquires a freestanding computer system instead of using the existing system. The Board's statement in the EIS concerning ongoing costs was not based upon information from affected persons. The statement concerning ongoing costs does not indicate what the ongoing costs of compliance with the Proposed Rules will be. It only indicates that it will be less than the initial implementation costs associated with the Proposed Rules. Although the weight of the evidence did not prove the estimated total amount of ongoing costs to affected persons from the Proposed Rules, the weight of the evidence failed to prove that ongoing costs will be greater than the estimated total amount of implementation costs. T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it would incur ongoing costs of approximately $6,000.00. This estimate is reasonable. Cataract Surgery Center estimated that it would incur ongoing costs of $41,600.00, or $20.00 per case, to comply with the Proposed Rules. Cataract Surgery Center's estimated costs include the following costs: reel purchase; handling; reel preparation; collection of billing data; process of sending information to the Board; clarification of errors; additional record production; and response to public inquiries. Cataract Surgery Center's estimated costs are not reasonable. The estimated time to comply with the Proposed Rules is excessive and some of the tasks, i.e., collection of billing data, are not required by the Proposed Rules. Cataract Surgery Center's conclusion that it may have an increase in maintenance fees is reasonable. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the ongoing costs affected persons can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of ongoing costs in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the ongoing cost which will be incurred by affected persons. The EIS contains a statement that the Proposed Rules should have no economic impact on small business. In reaching this conclusion the Board failed to take into account the legal definition of "small business" contained in Florida Statutes. The Board did, however, actually consider the impact the Proposed Rules would likely have on small ambulatory surgery centers subject to the Proposed Rules. The Board attempted to reduce the economic impact on small ambulatory surgery centers by allowing affected persons to file data on computer tape or on diskette. By allowing the use of diskettes for reporting data, the Board made it possible for affected persons to use personal computers to comply with the Proposed Rules. Delayed submission of some data elements was also allowed in order to reduce the impact on small facilities. It is unlikely that the Board would have made further modifications of the Proposed Rules had the legal definition of "small business" been considered. The weight of the evidence failed to prove what, if any, reasonable modifications should have been taken by the Board to accommodate any economic impact on small business. The weight of the evidence failed to prove whether any of the entities that participated in the proceeding were small businesses. Those entities, although meeting the definition of small business with regard to the number of employees they have and their net worth, failed to prove whether they are "independently owned and operated." See Section 288.703(1), Florida Statutes (1989). The weight of the evidence failed to prove if any person affected by the Proposed Rules is a small business. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of small business which can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of the impact on small business in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated legislative authority because of the impact on small business. The Petitioners and Intervenors presented evidence concerning a number of actions which the Board did not take during its consideration of the economic impact and factors of the Proposed Rules and its preparation of the EIS. This evidence proved only that there were other steps which the Board could have taken during its preparation of the EIS. The Petitioners and Intervenors failed to prove, however, that the steps which the Board did take were not sufficient. The Petitioners and Intervenors therefore failed to prove that the steps which the Board did not take were required or necessary.
Findings Of Fact At all times material hereto, Respondent was a licensed optometrist in the State of Florida, having been issued license number OP-0000437. On or about January 4, 1986, Clara Piskura was examined and fitted by Respondent for soft contact lenses. She had worn hard contact lenses for approximately 15 years. Respondent issued soft contact lenses to Piskura on January 4, 1986, but she immediately informed him she could not see well with the soft contact lenses. She subsequently reported headaches and a continuing inability to see. On or about January 8 and 18, 1986 Piskura had follow-up visits with Respondent, but when she went to Respondent's office on January 27, 1986, he refused to examine her. Her headaches and inability to see were not corrected in these follow-up visits. Piskura returned the soft contact lenses to Respondent, and received a 50 percent refund of the $110.00 she paid for the soft contact lenses, pursuant to an Agreement she signed on January 4, 1986. According to John Walesby, O.D., who was accepted as an expert in optometry, Respondent failed to keep acceptable minimum optometric records relating to his patient, Clara Piskura. He did not record a patient history or chief complaint, an internal or external examination of the patient, or a visual field testing in an acceptable manner. There is no recording of pupillary examination, or biomicrososcopy (monocular or binocular). Based upon his failure to keep adequate patient records which would meet minimum optometric standards, Respondent's examination and treatment of Piskura was negligent or incompetent in that it was incomplete, and did not allow anyone reviewing the records to interput or understand those records or the patient's condition. However, the evidence does not establish that Respondent's actions constituted misconduct in his profession or gross malpractice. Respondent testified that he conducted a complete and thorough exam of Piskura, but his records do not document or confirm his testimony, or otherwise explain his use of check-marks in his patient records. Respondent has been licensed, and has practiced in the State of Florida, for over 30 years and has never been the subject of license disciplinary action prior to this proceeding.
Recommendation Based upon the foregoing, it is recommended that the Board of Optometry enter a Final Order finding Respondent in violation of Sections 463.016(1)(g) and (k), Florida Statutes, and placing his license on probation for a period of 3 months, conditioned upon his successful completion of 6 hours of continuing optometric education in addition to the hours regularly required to maintain his license and the payment of a $500 administrative fine. DONE AND ENTERED this 7th day of January, 1988, in Tallahassee, Florida. DONALD D. CONN 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 7th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4902 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as unnecessary and irrelevant. 3-4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. 7-14. Adopted in Finding of Fact 5. 15-16. Rejected as unnecessary and cumulative. Respondent did not file Proposed Findings of Fact upon which explicit findings could be made. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Jack L. Hargraves 1211 South Dale Mabry Tampa, Florida 33629 Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
