The Issue The charges against Dr. Morton J. Schomer allege the following factual violations: Failure to display his license at the location of his practice of optometry; Failure to have an entry sign at the location of his practice indicating he was an optometrist practicing optometry; Failure to have all equipment required in the office where he engaged in the practice of optometry; and Failure to perform all tests and record the results as required for two patients, Edward Leswing and Steven Bachen. Dr. Schomer was afforded the opportunity by the Board of Optometry for an informal conference to discuss the allegations. This conference was conducted. Dr. Schomer requested the Board for a formal hearing, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57, Florida Statutes. Prior to the formal hearing the Respondent moved to dismiss the proceedings and in support thereof asserted factual matters contrary to those alleged in the Administrative Complaint. Respondent asserted that he was working for Dr. Ortelio Olazabal, was under the doctor's control and supervision, and was not engaged in the practice of optometry. Therefore, Respondent asserted that he was not required to display his license or to have an entry sign, and the Board lacked jurisdiction over because his practice with Dr. Olazabal was governed by Chapter 458, Florida Statutes, Medical Practice Act. This motion presented what were essentially affirmative defenses. The motion was denied by an order dated November 19, 1980. Respondent was afforded the opportunity to present evidence in support of his factual assertions at the formal hearing. Respondent also moved for a continuance. This motion was also denied by the order mentioned above. Respondent moved for an order in aid of discovery. The order cited above provided specific dates for the parties to complete various portions of prehoaring discovery and disclosure. The parties were able to comply with the schedule established, and the formal hearing was begun on December 12, 1980. The hearing could not be completed on that date and was continued on February 25, 1981, after which the parties stipulated to submit proposed findings within 30 days. Motions for Directed Verdict by Respondent were made and denied at the close of Petitioner's case and at the conclusion of the hearing. Proposed findings of fact were filed by Respondent. Petitioner did not file proposed findings. The Hearing Officer has read the proposed findings of fact submitted by the Respondent. To the extent that the following Findings of Fact do not contain the proposed findings, they have been rejected as not being relevant to the issues or not being based upon evidence adduced at the hearing, or as being inconsistent with evidence which the Hearing Officer deems more credible.
Findings Of Fact Counts I, II and V Dr. Morton J. Schomer is an optometrist licensed by the Florida Board of Optometry for approximately the past five years. Until just prior to November, 1979, he was a practicing optometrist in Ohio. At that time he moved to Hallandale, Florida. Dr. Schomer responded to a newspaper advertisement by Dr. Ortelio Olazabal and was hired by Dr. Olazabal to work as an optometrist at 518 NE 167th Street, North Miami, Florida. Dr. Schomer practiced optometry at that address three days per week from late November, 1979, until February, 1980. During that time Dr. Schomer did not have his Florida license displayed and did not have an entry sign at that address indicating he was engaged in optometric practice. (Transcript, Volume II; December 12, 1380 - Page 236.) Count III In January of 1980, Dr. Schomer examined Edward Leswing, a 57-year-old male who is an investigator for the Department of Professional Regulation. Dr. Schomer used a keratometer and phoropter to examine Leswing's eyes together with a projector and eye charts. Dr. Schomer asked Leswing about his health and conducted a field test (Transcript, supra - Pages 242 and 254). Dr. Schomer prescribed soft contact lenses and reading glasses for Leswing based on this examination. Dr. Schomer accurately recorded or caused to be recorded the results of the examinations conducted and pertinent personal data. Dr. Schomer did not use a tonometer or retinoscope or perform an unaided visual acuity test on Leswing. (See Leswing's testimony and Dr. Michael Kondell's comments on Leswing's record, Dr. Kondell's Deposition - Pages 39 and 40.) In the opinion of Dr. Michael Kendell (Deposition - Page 59) Dr. Schomer's examination was insufficient to prescribe soft contact lenses for Leswing. Dr. Kondell is a physician specializing in ophthalmology. He is board eligible and is accepted as an expert in diseases of the eye and their treatment, and the examination of the eye for prescribing contact lenses and glasses. Count IV At the time Leswing was examined, Dr. Schomer used a keratemeter, a phoropter, and projector and eye charts, and these items were present in the office (Transcript, Volume II; December 12, 1980 - Pages 238 and 239). Dr. Schomer used his hands to conduct a field test (Transcript, supra - Page 254). At the time Leswing was conducting a covert investigation and did not ask Dr. Schomer to produce or identify any of the equipment present in the office. Dr. Schomer kept his hand-held equipment in a wooden box which he covered with a clipboard. Count VI Steven Bachen, a 14-year-old male, was seen by Dr. Schomer during January, 1980. Dr. Schomer accurately recorded or caused to be recorded the results of his examination of Bachen and his pertinent personal data. Dr. Schomer performed a keratometric and retinoscopic examination of Steven Bachen. (See Petitioner's Exhibit 12 and Deposition of Dr. Michael Kondell - Pages 36 through 38.) Dr. Schomer also used a phoropter to examine Steven Bachen's eyes (Transcript, Volume II; December 12, 1980 - Page 157). Dr. Schomer prescribed soft contact lenses for Bachen as a result of this examination. In the opinion of Dr. Kondell, Dr. Schomer's examination was sufficient to prescribe soft contact lenses for Steven Bachen (see Dr. Michael Kondell's Deposition - Pages 43 and 58). Count VII During the examination of Steven Bachen, Dr. Schomer used a phoropter, keratometer, projector and charts, and retinoscope. These items were present in the office. Count VIII At the time Dr. Schomer examined Steven Bachen he conducted a keratometric examination of Bachen. Bachen's glasses were removed when this examination was performed. Count IX No evidence was introduced concerning prior violations of Chapter 463, Florida Statutes, by Dr. Schomer. The only evidence presented of violations of Chapter 463, supra, was with regard to Counts I through VIII above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law thee Hearing Officer recommends that Dr. Morton J. Schomer receive a letter of reprimand and be placed on probation for a period of one year, during which time his premises and records will be subject to examination by the Board of Optometry to ensure that he is in compliance with all applicable statutes and rules. DONE and ORDERED this 1st day of May, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 1st day of May, 1981. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael B. Udell, Esquire 2020 NE 163rd Street, Suite 204 North Miami Beach, Florida 33162 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the examination was unfairly graded, and if so, whether petitioner would have passed, if it had been graded fairly.
Findings Of Fact Petitioner Bruce K. Barr almost passed the clinical portion of the December 1981 examination administered to applicants for Florida dental licenses. On a scale of 0 to 5, he scored 2.992, rounded to 2.99, the merest fraction below the lowest possible passing grade, 3.0. In the course of the clinical portion of his examination, Dr. Barr performed various dental procedures, each of which was evaluated by three and, in one instance, five examiners. An average score was computed for each procedure and these scores were used to calculate another weighted average, which was the final score awarded Dr. Barr on the clinical portion of the examination. The following chart, based on joint exhibits B and E, reflects the scores Dr. Barr received from each examiner for each clinical procedure, reflects the average score calculated for each procedure, and indicates the weight given each procedure in calculating the weighted average of 2.99. Procedure Scores Grade for Weight Procedure Endodontics Posterior 4,3,3 3.33 7.5 percent Cavity Prep. Final 4,4,3 3.67 13.3 percent Restoration 3,3,2 2.67 6.6 percent Anterior 4,3,3 3.33 7.5 percent Amalga Denture Occlusal R & Pressure and T 2,2,2 2.00 10.0 percent Articulation 4,3,3 3.33 10.0 percent Peridontal Cavity Prep. Final 3,1,1 1.67 10.0 percent Restoration 3,2,2 2.33 5.0 percent Evaluation 5,4,4,3,2 3.60 20.0 percent Cast Gold Pin Amalgam Prep. Final 3,3,3 3.00 6.6 percent Restoration 3,3,2 2.67 3.3 percent The weight to be given each procedure is specified by Rule 21G-213(3), Florida Administrative Code. Dr. Barr contends that the 2 he received from one of the examiners who evaluated his periodontal work, the 2 he received from one of the examiners who evaluated the final amalgam restoration he performed, one of the two 3s he received from examiners who evaluated the denture pressure and articulation procedures he performed, and the 2 he received from one of the examiners who evaluated his pin amalgam final restoration were improper for various reasons. All of the clinical examiners were licensed as dentists in Florida and none had practiced less than five years. After they had been selected as examiners, they gathered for an all-day standardization session to "fine tune [the criteria] and come to a consensus about how they [we]re going to grade." (T. 62) At this session, the examiners applied the "criteria in a full mock examination. . ." (T. 62) Department heads from the dental school of the University of Florida participated in the standardization exercises (T. 81). The grade of 3.0 was chosen to represent "minimally acceptable." In no case did one examiner know what grade another examiner had given. In an effort to ensure uniformity in grading, two additional examiners were asked to evaluate a procedure, whenever any two of the first set of three scores were separated by three or more points. When additional examiners were assigned to a procedure, they were not told how many other evaluations had been performed, although circumstances were sometimes such that they could deduce that they were not among the first three examiners to evaluate. DOCUMENTATION The examiners were furnished a form for each evaluation of each of the procedures. More than 17,000 evaluations took place in connection with the December 1981 Examination. On the forms were listed the criteria to be applied and "canned comments" pertaining to each procedure. The "comments" section on the periodontal evaluation form, for example, read as follows: "0-No Comment; 1-Stain; 2-Supra-gingival Calculus; 3-Root Roughness; 4-Sub-gingival Calculus; 5-Tissue Management." The numbers were to permit coding so that the form comments could be read by a machine and do not correlate to any particular score. Examiners were asked to indicate on the form a grade for each procedure they evaluated and, for each procedure which they gave a failing grade (2.0 or lower), they were asked to assign a reason. Whether they made comments on procedures to which they gave grades of 3.0 or better was left to their discretion. PERIODONTAL EVALUATION Because of the three point spread between the 2 and the 5 he received from two of the three examiners who originally evaluated respondent's periodontal work, two additional examiners were asked to make evaluations. All five scores were then averaged, in keeping with the procedure applied in every such case. Examiner No. 36 assigned a grade of 5 and indicated, "No Comment." Examiners Nos. 37 and 71 each assigned a grade of 4 and indicated, "Sub-gingival calculus." Examiner No. 72 awarded the procedure a 3, noting root roughness and sub-gingival calculus. Examiner No. 5 assigned a grade of 2, noting sub- gingival calculus and "Tissue Management." The person on whose teeth petitioner performed the periodontal procedures had moderate roof roughness and "pockets," extensive calculus above and below the gum line, and extensively stained teeth. Respondent's Exhibit No. 3. It was a difficult assignment, and the examiners were so advised. Tissue mismanagement, if any, was not such as to justify a failing grade. Petitioner has had extensive training and experience in periodontics, which is his specialty. AMALGAM RESTORATION Examiners Nos. 5 and 72 each assigned a grade of 3 to petitioner's "final amalgam restoration," indicating problems with "functional anatomy" and "proximal contour." Examiner No. 36 gave this procedure a grade of 2, noting the same problems as the other examiners had indicated, and, in addition, "light contact" and a problem with "margin." Light contact refers to the resistance dental floss met when inserted between the filling and the adjacent tooth; and insufficient resistance could be characterized as a problem with "proximal contour." As for the pin amalgam, final restoration, all three examiners noted problems with functional anatomy. Examiner No. 37, who gave this procedure a grade of 2 wrote out "innocclusion" on the form. The other examiners assigned a grade of 3 but examiner No. 71 noted a problem with "proximal contour" and examiner No. 36 noted a problem with "margin." DENTURE PRESSURE AND ARTICULATION All three examiners who evaluated petitioner's work on dentures commented on "[e]xtension" which relates to the fit. That was the only comment of Examiner No. 72 who gave petitioner a grade of 4 on this procedure. Examiner No. 71 who awarded petitioner a grade of 3 on this, noted a problem with "surface detail" in addition. Even at the time of hearing, there was some detail on the model made by petitioner in performing the required procedure for the examination. Examiner No. 36, who also awarded petitioner a grade of 3 for this procedure, indicated still other problems: "Pressure Areas" and "Distribution." TEST DESIGN The clinical portion of the examination prescribed for licensure as a dentist proceeds on the assumption that different clinicians' evaluations of an applicant's work will vary, even after the examiners have discussed criteria for each procedure and taken other steps toward standardization. Because disagreement is anticipated, three examiners evaluate each procedure independently of one another. Whenever there was more than a two point difference between grades awarded for the same procedure, two additional examiners were called in, in an effort to enhance the reliability of the grade for that procedure. In petitioner's case, there was a three point spread between two evaluations of his periodontal work and a two point spread between different examiners' evaluations of his cast gold cavity preparation, but no more than a single point disparity on any other procedure. The test design contemplates differences of this magnitude. All these safeguards notwithstanding, the test also assumes that there will be errors with respect even to average scores on given procedures. It depends for its reliability on the probability that such errors will not all be in the same direction. Florida's clinical examination employs more examiners and more procedures than any other state's, and compensating errors should make it among the most reliable of examinations of its kind. Proposed findings of fact and proposed recommended orders have been considered and, in many instances, adopted in substance. Otherwise they have been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure with leave to reapply. DONE and ENTERED this 20th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of April, 1983. COPIES FURNISHED: M. Catherine Lannon, Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Bruce K. Barr, D.D.S 532 Madison Avenue New York, New York 10022 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination in this proceeding is whether Respondent violated Chapter 463, Florida Statutes, by committing the acts alleged in the administrative complaint and, if so, what disciplinary action, if any, should be taken against Respondent's license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed optometrist in the state, holding license number OP 1513. Background Respondent performed optometry examinations on patient S.R. on September 12, 1988, and on September 22, 1988. The examinations were performed at Linsey Eyecare, 2021 Palm Beach Lakes Boulevard, West Palm Beach, Florida. Respondent is a subcontractor for Dr. Steven Venokour who manages Linsey Eyecare. Linsey Eyecare advertises that it is a ". . . department store that . . . " fills ". . . 90% of most prescriptions . . . in about one hour. . ." and offers ". . . a complete and comprehensive visual diagnosis . . ." in which ". . . your eyes are screened for glaucoma." S.R. went to Linsey Eyecare because she saw its advertisement in the local newspaper. Respondent knew that S.R. had a family history of glaucoma. S.R. informed Respondent when she gave her ocular history to Respondent at the outset of her eye examination on September 12, 1988, that her father had lost his eyesight due to glaucoma. A patient with a family history of glaucoma may be at a greater risk of having glaucoma than a patient without such a history if the family history of glaucoma is hereditary rather than the result of an accident or disease. Respondent knew that his assistant had not performed a non-contact tonometer on S.R. Respondent did not perform a non-contact tonometry test (a "tonometry test") on S.R. during eye examination given to S.R. on September 12, 1988. A tonometry test is one of the tests used to screen for glaucoma. It is used to take a pressure reading using a machine that blows a puff of air in the patient's eye. The puff of air creates a startling sensation in the patient's eye that the patient does not easily forget. The machine used to give the tonometry in Linsey Eyecare was malfunctioning on September 12, 1988, and that particular test was not given to S.R. However, S.R. was given additional tests for glaucoma. S.R. discovered through conversations with a third party that a tonometry test is one of the tests customarily used to screen for glaucoma. S.R. recalled that she had not received a test using a puff of air in her eye. S.R. called Linsey Eyecare and scheduled another eye examination for September 22, 1988. A tonometry test was given to S.R. during her second eye examination on September 22, 1988. 3/ Negligence The minimum standard of medical care requires that a patient with a family history of glaucoma receive a complete glaucoma screening. The examination of such a patient should be more extensive than the examination given to a patient without a family history of glaucoma. A patient with a family history of glaucoma, at a minimum, should receive a tonometry test. If a tonometry test cannot be performed, intraocular pressure should be measured using the Goldman applanation tonometry. 4/ Irrespective of the method used to measure intraocular pressure, the cup to disc ratio should be measured to determine if cupping has occurred. Cupping is another clinical sign that increases the risk of glaucoma. The anterior angle should also be examined under a biomicroscope to determine if the angle is opened or closed. If a narrow angle is detected, fluid may not be draining properly and a gonioscopy should be performed to more accurately determine if the anterior angle is opened or closed. If all of the findings from the foregoing tests are positive, the patient should be given a visual field evaluation. Respondent failed to conform to the minimum standard of care when he did not measure S.R.'s intraocular pressure by either a non-contact tonometry or an applanation tonometry during his patient's initial visit to Linsey Eyecare. Some type of tonometry test is the minimum requirement for glaucoma screening. For a patient with a family history of glaucoma, it is essential that the tonometry test be performed during the initial examination and not during a follow-up examination. Respondent did not dilate S.R.'s eyes for further examination during her initial visit because S.R. had no other person available to drive her home. Respondent dismissed S.R. without performing any tonometry test, knowing that his patient had a family history of glaucoma. Respondent did not reschedule S.R. for a follow-up examination nor advise S.R. to arrange such an examination with Respondent's office or any other optometrist. The patient returned to Linsey Eyecare for a follow-up examination at her own insistence and not at the direction of Respondent. Respondent conformed to the minimum standard of care for S.R. during her follow-up examination on September 22, 1988. Respondent performed both a non-contact tonometry and an applanation tonometry. Respondent measured the cup to disc ratio, the depth and angle of the anterior chamber, and performed a visual field screening using confrontation fields. All of the test results were within normal ranges. Based upon the absence of positive findings, a gonioscopy was not appropriate and was not done. The only act of negligence committed by Respondent was the failure to perform some type of tonometry during S.R.'s initial eye examination on September 12, 1988. Medical Records Respondent failed to keep adequate written optometric records (the "records") for the initial eye examination given to S.R. on September 12, 1988. Respondent failed to document the reasons for omitting a tonometry from S.R.'s eye examination. In all other respects, the records maintained for the initial eye examination were adequate. The only notation in the family history is glaucoma. While the family history documented in the records was incomplete, the patient was unresponsive or uncooperative in providing such information. The reason for the incomplete family history was sufficiently documented with the notation "N". 5/ Respondent kept adequate records for the second eye examination given to S.R. on September 22, 1988. The notations in the records were difficult to read and the copies used by Petitioner's expert witness were of poor quality. Upon cross examination by Respondent, however, it was uncontroverted that proper and adequate records were maintained by Respondent for S.R.'s second eye examination. The records of the second examination reveal that the cup to disc ratio was sufficiently documented by the notations "CD" for clear and distinct and ".3N" in both eyes. Color of the optic nerve head was adequately described by the notation "WNL". The depth and angle of the anterior chamber was adequately documented by the notation of "3/3+" (three over three plus). The confrontation fields were adequately documented by the notation of "full OU". Adequate records were maintained by Respondent even though they contained sloppy penmanship and the copies reviewed by Petitioner's expert were poor in quality. Advertisement Respondent did not advertise goods or services in a manner that was fraudulent, false, deceptive, or misleading in form and content ("misleading"). The advertisement in question was not misleading. Even if it was misleading, the advertisement was placed by Linsey Eyecare under the direction of Dr. Venokour. Respondent was a subcontractor for Linsey Eyecare and had no control over the placement and content of advertising for that entity. 6/ Repeated Violations Respondent is guilty of repeated violations of applicable provisions of Florida law. In a Final Order entered on November 10, 1982, pursuant to Section 120.57(2), Florida Statutes, Respondent was found guilty of having failed to remove all of the metal fragments found in a patient's eye during repeated attempts at removal on December 24, 25, and 28, 1981, in violation of Section 463.016(1)(g). Respondent was fined $500 and placed on probation for one year.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Petitioner should enter a Final Order finding Respondent guilty of failing to provide a tonometry during the patient's initial presentation and failing to document the patient's records as the omission and the reason for such an omission in violation of Sections 463.016(1)(g) and 463.016(1)(k), Florida Statutes. It is further recommended that the Final Order should impose an administrative fine in the aggregate amount of $4,000 and place Respondent on probation for one year subject to reasonable terms of probation to be determined by Petitioner. RECOMMENDED this 24th day of September 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 24th day of September, 1991.
Findings Of Fact Respondent, Mark N. Dobin (Dobin), was at all times material hereto licensed to practice optometry in the State of Florida, and held license number OP 0001202. Inadequate Eye Examinations On November 5, 1985, Alison Lichtenstein, an investigator employed by the Department of Professional Regulation (DPR), entered Dobin's offices in Margate, Florida. Using the assumed name of Alison Smith, Ms. Lichtenstein, who was wearing glasses at the time, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Lichtenstein failed to include the following minimum proceduresrequired by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire whether Lichtenstein was taking any medication; (b) an external examination; (c) a pupillary examination; (d) visual field testing; and (e) a biomicroscopy. On November 5, 1985, Mary Pfab, a licensed optometrist in the State of Florida, entered Dobin's offices in Margate, Florida. Using the assumed name of Mary Parker, Ms. Pfab, who was wearing contact lenses, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Pfab failed to include the following minimum procedures required by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire of Pfab's personal medical history, her medications, her family medical history, or her family ocular history; (b) a pupillary examination; and (c) visual field testing. An optometrist's failure to perform the minimum procedures required by Rule 21Q-3.007, Florida Administrative Code, can have a profound impact on the results of his examination. Pertinent to this case, the procedures omitted by Dobin were of import because: Many medications mask the symptoms of a number of eye diseases. A failure to ascertain what medications a patient is taking could, therefore, result in the optometrist missing or not checking for certain diseases. A personal medical history is likewise important to an informed examination. Pre-existing injuries and diseases can have a profound impact on an optometrist's findings, and the cause of that finding is important too the ultimate diagnosis and treatment of the patient. The patient's family medical and ocular history is also important to an informed examination. For example, a person with a family history of diabetes, cataracts or glaucoma is more likely to have such disease than one without such family history. Consequently, if alerted by such information, the optometrist could diagnose the presence of such disease and prescribe treatment at a much earlier stage of its development than might ordinarily be the case. A pupillary examination evaluates the nervous system which connects the eye and retina to the brain. A failure to perform such examination could cause the optometrist to overlook the existence of a brain tumor or other forms of nerve damage. Visual field testing is a diagnostic tool used to detect the presence of gross nerve damage, traumatic cataracts, glaucoma, diabetes, and certain peripheral retinal diseases. Absent such test, these diseases might not be detected. In this case, the import of Dobin's failure to perform a visual field test was heightened. Visual field testing and tonometry are two of the three diagnostic procedures utilized to detect glaucoma. Where, as here, tonometry was not performed, the importance of visual field testing is more significant to the early detection of that disease. Biomicroscopy is a diagnostic tool used to detect the presence of bacterial conjunctivitis, corneal ulcers, corneal scars, blepharitis, and some lid injuries. Absent stich test, these diseases or injuries might not be detected. An external examination is important to the detection of skin cancer, skin lesions, blepharitis, and bacterial or allergic conjunctivitis. Absent such examination, these ocular problems might be overlooked. Inadequate Patient Records Contrary to the requirement of Rule 2IQ-3.007, Florida Administrative Code, the patient case record for Ms. Lichtenstein and Ms. Pfab did not reflect whether the following tests were performed or if performed the results: (a) a complete patient history, (b) an external examination, (c) a pupillary examination, (d) a visual field test, (e) an internal examina- tion, (f) a biomicroscopy, and (g) diagnosis and treatment. The inadequacy of Dobin's patient records would adversely affect his ability, and that of a subsequent treating optometrist, in treating these patients. Absent a medical history and the results of the tests performed, an optometrist is severely hampered in his ability to track the progress of diseases, or to detect their onset. Exercising Influence For Financial Gain Petitioner asserts that Dobin, by accepting a fee for a vision analysis that did not comply with the minimum requirements of Rule 2IQ-3.007(1), Florida Administrative Code, violated Section 463.0l6(1)(m), Florida Statutes. That section prohibits: Exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party. Petitioner's proof was not persuasive. While the patients in this case may not have received the minimum examination mandated by law, I am not persuaded that such failure constituted the exercise of influence to exploit a patient contemplated by Section 463.016(1)(m). There was no showing that Dobin recommended unnecessary tests or unnecessary products, or that he otherwise sought to influence their choice of procedures or materials for financial gain. Such being the proof, the Petitioner failed to demonstrate a violation of Section 463.016(1)(m) Unlicensed Practice Of Optometry Petitioner further asserts that Dobin's "association" with Eye-Wear Glasses, Inc., his landlord, violated the provisions of Section 463.0l4(1)(c), Florida Statutes, and Rule 2IQ-3.008, Florida Administrative Code. Section 463.014(1) provides: (c) No optometrist shall engage in the practice of optometry with any organization, corporation, group, or lay individual. This provision shall not prohibit optometrists from employing, or from forming partnerships or professional associations with, optometrists licensed in this state. And, pertinent to this case, Rule 2IQ-3.008 provides: No licensed practitioner shall enter into any agreement which adversely affects the licensed practitioner's exercise of free, independent and unlimited professional judgment and responsibility, or which permits any unlicensed person or entity to practice optometry through the licensed practitioner by controlling and/or offering `optometric services to the public. The professional judgment of a licensed practitioner should be exercised solely for the benefit of his patients and free from any compromising influences and loyalties. The Board will consider the circumstances of the practice including but not limited to, the following factors in determining whether a violation of Section 463.014, F.S., has occurred: Whether the licensed practitioner holds himself out to the public as available to render professional services in any manner which implies that the licensed practitioner is professionally associated with or employed by an entity which itself is not a licensed practitioner. For purposes of this rule "entity" shall refer to any corporation, lay body, organization, individual or commercial or mercantile establishment which is not a licensed practitioner. The term "commercial or mercantile establishment" shall include, but not be limited to, an establishment in which the practice of opticianry is conducted pursuant to Chapter 484. Whether the professional office space occupied by the licensed practitioner is such that it does not clearly and sufficiently indicate to the public that his practice of optometry is independent of, and not associated with the entity. Whether the licensed practitiQner has a telephone listing and number that is separate and distinct from that of the entity or whether the phone is answered in a manner that does not identify his optometric practice or whether the telephone is answered in a way that indicates that the licensed practitioner is professionally associated with or employed by the entity. Whether the entrance to the building or commercial or mercantile area in which the licensed practitioner's practice is located sufficiently identifies that the licensed practitioner is practicing his profession independent of, and not associated with the entity. Whether advertisements, including those placed in a newspaper and/or telephone directory, imply that the licensed practitioner is professionally associated with, or employed by an entity. Whether the licensed practitioner maintains full and total responsibility and control of all files and records relating to patients and the optometric practice, in accordance with Rule 2IQ-3.003. Whether the licensed practitioner has full and complete control and discretion over fees charged to patients for his services and billing methods. Whether the provisions of a lease or space agreement between the licensed practitioner and the entity operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Whether the arrangements for the furnishing of equipment or supplies to the licensed practitioner operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Eye-Wear Glasses, Inc., is owned and operated by two licensed opticians. By a "rental agreement" dated October 12, 1983, Eye-Wear Glasses, Inc., and Dobin entered into an agreement whereby Dobin was sublet space within Eye-Wear Glasses' premises. That "rental agreement" provided: RENTAL AGREEMENT BETWEEN EYEWEAR GLASSES INC. AND DR. MARK N. DOBIN Rent shall be $1.00 per month, and shall continue for a 2 year period with continuing 2 year options. This lease will go into affect on October 17th 1983. The rent of $1.00 per month shall include water, electricity, and air conditioning. Dr. Mark N. Dobin will be responsible to supply all equipment, stationary, and supplies needed to run an Optometric Office. Dr. Mark N. Dobin will have a phone installed at his own expense and his monthly bill along with Yellow Pages advertising c shall be paid by him. Dr. Mark N. Dobin will be allowed to advertise independent of Eyewear Glasses Inc. at his own expense. A key allowing access to the premises shall be given to Dr. Mark N. Dobin. Fees for Services performed by Dr. Mark N. Dobin, will be determined by Dr. Mark N. Dobin and shall be collected independent of those fees from Eyewear Glasses. Being a private entity, Dr. Mark N. Dobin shall have the right to determine his own office hours, days worked and vacation time, but he shall try to coordinate these days with those of Eyewear Glasses Inc. if this is possible. Renter, Dr. Mark N. Dobin, has the option of selling his practice and its contents to another Eye Doctor. This sale may include all records and files of patients belonging to Dr. Mark N. Dobin. At the time of sale, Eyewear Glasses Inc. has the right to renegotiate the lease, but not to alter it in such a way as to make the sale of the practice uninviting. Before the sale is finalized a 3 month trial period may be requested by either party. If Dr. Mark N. Dobin is unable to sell his practice, Eyewear Glasses Inc. has the right of first refusal to purchase his practice or his equipment. If the office is unoccupied for a period of 30 days, Eyewear Glasses Inc. has the option of subleasing the practice to another Eye Doctor, until which time the practice is sold or Dr. Mark N. Dobin returns. Dr. Mark N. Dobin has the right to hire another Eye Doctor to work his office during vacation time, or other times when he is not available. If Eyewear Glasses Inc. is not happy with the performance of said Eye Doctor. it may request that another Doctor be hired by Dr. Mark N. Dobin, but the final decision shall be his. Dr. Mark N. Dobin has the right to hire c an employee at his own expense, to assist in his office. A key to the premises may be given to said employee, but permission must first be granted by Eyewear Glasses inc. If either partner of Eyewear Glasses Inc. decides to sell his share of the corporation to the other, all points of this lease agreement shall remain in affect. If both owners agree to sell their share of the corporation, Dr. Mark N. Dobin shall have the right of first refusal to purchase Eyewear Glasses Inc. and its contents. Eyewear Glasses Inc. agrees to build a partition at its own expense in order to meet Florida State Optometric Board requirements. A Covenant of Restriction with a radius of 5 miles shall go into affect 2 years from the beginning of this lease, and shall last for a period of 3 years from the termination of this lease. Dr. Mark N. Dobin shall not sell eyeglasses or other optical excessories, excluding all items pertaining to the sale and dispensing of contact lenses. The space occupied by Dobin, which consisted of approximately 248 square feet, was located at the rear of the optician's store, and accessible by way of a sliding glass door from the store or through a back glass door from the shopping mall area. Consequently, customers of either business had an unrestricted view and access to the business of either profession. Considering the physical layout of the premises, as well as the view of the premises afforded by Petitioner's exhibit 5, the proof established that Dobin held himself out to the public in a manner that implied he was professionally associated with or employed by Eye-Wear Glasses, Inc. Indeed, the "rental agreement" itself depicts a business association more far reaching than that of landlord and tenant, and served to impair Dobin's exercise of free, independent, and unlimited professional judgment and responsibility. 1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOM)MENDED that Respondent, Mark N. Dobin, be placed on probation for twelve (12) months, and that an administrative fine of $3,000 be imposed upon him. DONE AND ORDERED this 24th day of July, 1987, in Tallahassee, Leon County, 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 24th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4484 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2. 4. Addressed in paragraph 3. 5-6. Addressed in paragraph 2. 7-9. Addressed in paragraph 4. 10. Addressed in paragraph 5. 11-12. Addressed in paragraph 4. 13-22. Addressed in paragraph 6(a) -(g). 23-24. Addressed in paragraph 7. 25. Addressed in paragraph 8. 26. Addressed in paragraphs 9-10. 27-31. Addressed in paragraphs 11-13. COPIES FURNISHED: Phillip B. Miller, Esquire c Robert D. Newell, Jr., Esquire 102 South Monroe Street Tallahassee, Florida 32301 Mark N. Dobin 7384 West Atlantic Boulevard Margate, Florida 33063 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Petitioner is entitled to receive a passing grade on her optometry examination.
Findings Of Fact Petitioner took the optometry licensure examination on September 22-24, 1991. Following review of her initial scores, Respondent informed her by notice dated February 22, 1991, that she earned 100 points on Florida law and rules, which was a passing grade; 52.5 points on pharmacology and ocular diseases, which was below the minimum passing grade of 70; and 77 points on clinical, which was below the minimum passing grade of 80. Petitioner challenged her grades on the pharmacology and ocular diseases and clinical portions of the examination. However, at the beginning of the hearing, shedropped her challenge to the pharmacology and ocular diseases portion of the examination. The clinical portion of the examination is divided into two sections. In the first section, the applicant sees a "patient." Two examiners watch and listen as the applicant examines the "patient," who is unknown to the applicant and has been prepared with certain information. The applicant is graded under various areas within the broad categories of case history, visual acuity, pupillary exam, confrontation visual fields, and extra-ocular muscle balance assessment. In the second section, the applicant brings with him to the test site his own "patient." Two examiners, who are different from the examiners for section one, evaluate the applicant's ability to use various types of clinical equipment on his "patient." In the first section, Petitioner challenged the grades that she received for Questions 6, 8-10, and 11, which are all worth two points except for Question 10. Question 10 is worth four points. In the second section, Petitioner challenged the grades that she received for Questions 1-4, which are all worth five points, except for Question 4. Question 4 is worth four points. Any combination of additional points adding up to two or more would give Petitioner a passing grade on the pharmacology and ocular disease portion of the examination. As noted below, Petitioner received partial credit for certainanswers. Each of the four examiners completed a scoresheet while grading Petitioner. When no or partial credit was awarded, the examiner would write comments explaining what the problem was. Testifying for Respondent at the hearing, a licensed optometrist, who was one of the examiners of Petitioner for section two, explained adequately each of the scores awarded Petitioner for each of the challenged questions. He established that the equipment was carefully calibrated prior to each test session and for each individual applicant. A psychometrician employed by Respondent also testified that she had analyzed the variance of the scores among the examiners, in terms of overall scores for all applicants, and found no variances tending to discredit the grades. The challenged questions and clinical procedures provided a reliable measure of an applicant's relevant ability, knowledge, and skill. Petitioner's grades were a fair evaluation of her performance on the challenged questions.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Optometry enter a final order dismissing Petitioner's challenge to her scores in pharmacology and ocular diseases and clinical portions of the September, 1990, optometry licensure examination. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of June, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792 Chidiebere Ekenna-Kalu P.O. Box 621507 Orlando, FL 32862-1507 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792
Findings Of Fact Petitioner sat for the August 24, 1991 Optometry licensure examination. He did exceedingly well on two of the three portions of the examination. His grade on the clinical portion (sections 1 and 2) was 71.5. The minimum passing score was 75.0. Petitioner challenged the behavior of the examiners in section 2 of the clinical portion of the examination, and the grade he received for several individual procedures tested. Petitioner's patient for the clinical examination was his wife, Susan Vazoulas. Mrs. Vazoulas testified that prior to Petitioner entering the examination room for section 2 of the clinical portion of the examination, she overheard the two examiners, one male and one female, discussing material already on their clipboards. The male examiner indicated he had given an "81". The female examiner indicated she had given an "84", but was a "hard liner." Petitioner was not present during this exchange. Mrs. Vazoulas did not see what was on the examiners' clipboards and could not testify with any certainty as to what was being discussed. Every reasonable inference suggests that the examiners' conversation did not apply to Petitioner's section 2 clinical test for the following reasons: The examiners' comments were made before the Petitioner entered the examination room and before he began to take his section 2 clinical examination. The numbers "81" and "84" bear no relationship to any of Petitioner's scores on any portion of his licensure examination. The examiners for section 2 were not the examiners for section 1, whereon Petitioner scored 100%. If anything, had the examiners reached two divergent scores of 81 and 84, respectively, it would more likely suggest the presence of independent judging and the lack of collusion, instead of the presence of collusion and absence of independence as assumed by Petitioner in this instance. The examination room in which section 2 of Petitioner's clinical examination was administered was very small, approximately 8 x 10 feet. During section 2, the two examiners separately viewed each of 16 procedures performed on Mrs. Vazoulas by Petitioner and after each procedure, they individually returned to their respective clipboards to record their scores. The two clipboards were placed on a countertop side by side while not in use. Petitioner and Mrs. Vazoulas each observed the examiners separately marking their respective clipboards but never saw what was written down by either of the examiners. Petitioner and Mrs. Vazoulas felt it would have been hard for each examiner to avoid seeing the score assigned by the other examiner, but neither Petitioner nor Mrs. Vazoulas observed any actual sharing of information or scores during Petitioner's section 2 clinical examination or afterwards. Petitioner and Mrs. Vazoulas testified in terms of the examiners having "the chance" to see each other's clipboard and "the opportunity" for collusion and absence of independence in grading. In this instance, Petitioner considered that identical grades given by both examiners was proof of their collusion and arbitrary and capricious grading. However, similarity of scores is equally susceptible of being interpreted as resulting from each examiner having observed the same performance by Petitioner on each of the 16 procedures and applied the same judging criteria to what s/he saw. The law does not presume illicit behavior without more evidence than that it "could have" happened. Petitioner challenged his section 2 grade for clinical procedures 4-9 for biomicroscopy, alleging that he was graded 17.5 out of a possible 20 points while all parts were checked "yes". In fact, the score sheets show that all parts were not checked "yes" by both examiners. One examiner graded procedure four with "N" for "no". This could result in an "all or nothing" score of zero for that item. Assuming, arguendo, the "yes" and "no" were averaged, Petitioner's score still would not have amounted to the additional 2.5 points Petitioner alleged he was entitled to out of this section of the examination. Respondent's Exhibit 2 is a document titled "Optometry Practical Examination Section 2 - Grading Standards August 1991." The instructions to the examiners state in the second paragraph of that document, "Comment on reason for any NO judgment. Comment if performance was a marginal YES." Thus, examiners could legitimately insert comments even where they responded "yes" in evaluating the performance of the candidate in a given procedure. They did so here. Petitioner challenged his grade on procedure number 15, gonioscopy, stating that partial credit should have been given for the showing of the proper angle. Petitioner's Exhibits 1 and 2, the grade sheets for section 2, reflect that Petitioner received no credit from either examiner. Both "no" responses have comments recorded next to them. Respondent's Exhibit 2, page 4, states the criteria for a "yes" response on procedure number 15, gonioscopy, as: Must be focused on nasal angle with proper illumination Gives proper response to question Both criteria must be satisfied to receive a "yes" response. Petitioner and Respondent concur that Petitioner correctly demonstrated the angle required in procedure 15, gonioscopy, which satisfied one of the two required criteria to receive a "yes" from either examiner. Petitioner attempted, by extrapolation of procedure 5, to show that the remaining criterion was also met. He was not persuasive in this attempt. The grade sheets reflect that Petitioner failed to satisfy the second criterion: to give the correct response to the question posed. Petitioner made no valid showing that he did answer the question correctly or that the points available from this answer would raise his total score 3.5 points for a passing grade. Petitioner challenged his grade for procedure number 1, binocular indirect ophthalmoscopy (BIO). Petitioner admitted that he did this procedure incorrectly by using the 3:00 o'clock position, rather than the 9:00 o'clock position requested by the examiners but felt six points should not have been deducted and it should have been marked "yes, marginal," awarding him a majority of the six lost points. Petitioner did not demonstrate good cause within the grading criteria in evidence why he should have received the "majority," presumably four, points. Petitioner presented no evidence concerning the grading of challenged procedures 11 and 14. As to all of the foregoing, Petitioner's challenge to the effect that he did not understand the grading system was not sufficient to carry his burden of proof to establish that the examination, scoring, and/or grading system was arbitrary or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Professional Regulation enter a final order ratifying the examination grade previously assigned to Petitioner. DONE and RECOMMENDED this 15th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2205 The following constitute specific rulings, pursuant to S120.59 (2) F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: None filed Respondent's PFOF: 1-6 Accepted except for unnecessary, subordinate on cumulative material. 7-13 Accepted except for subordinate material. It is noted that Petitioner bears the burden of proof herein, not Respondent. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 George L. Vazoulas 182C Chestnut Ridge Drive Harrisonburg, VA. 22801 Diane Orcutt, Executive Director Department of Professional Regulation, Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
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.
Findings Of Fact The Respondent is a licensed medical doctor holding license number MEOO17343 issued by the Florida Board of Medical Examiners. He has a general family practice but also states that he specializes in neurology as well. He is not board certified in any specialty. He has had many years of practical medical experience in Cuba and later in the United States. The Petitioner is an agency of the State of Florida charged with regulating and enforcing licensure and the licensure standards for medical doctors in Florida, and enforcing the practice standards embodied in Chapter 458, Florida Statutes. In October, 1981, the Respondent employed Manuel Farinas to work in his medical office, specifically for the purpose of performing eye examinations and writing prescriptions for eyeglasses. The Respondent had known Manuel Farinas when they were in Cuba and knew that he had experience also in working with contact lenses and fitting contact lenses and eyeglasses. The Respondent was aware that Farinas did not hold a license to practice any of the medical or healing arts in Florida, but was informed by Farinas that he was then studying to take the foreign medical graduate examination which is a prerequisite to licensure. The Respondent set up a separate eye examination room in his medical offices which contained equipment designed specifically to perform eye examinations. Indeed, as established by Petitioner's composite Exhibit 7, Manuel Farinas has not been and is not licensed as a physician or physician's assistant in Florida and holds no license in Florida authorizing practice of medicine in any form. On March 16, 1982, Dorris B. Bruce, an investigator for the Department of Professional Regulation, went to the Respondent's office to obtain an eye examination. Patient Bruce was examined by Mr. Farinas and was diagnosed as having "hypertension retinopathy." The examination of the "patient" consisted of a cornea examination, an examination for conjunctivitis, the patient's lenses were checked, and a fundus examination was performed. The patient was given a prescription for eyeglasses on the Respondent's prescription blank, which bore his printed name. The blank was unsigned and Respondent's testimony itself establishes that the examination of patient Bruce and the rendering of the prescription for eyeglasses was done exclusively by Manuel Farinas, and Respondent did not examine Dorris Bruce nor supervise the medical care provided by Farinas. Robert Wolf, an investigator employed with the Department, made an appointment for an eye examination with the Eyeglass Emporium for June 1, 1982. This is a business establishment and opticinary owned by one Geoffrey Hullman. It is located next door to, and in the same building with, the Respondent's medical office. Upon arriving at the Eyeglass Emporium, Mr. Wolf was directed to the Respondent's adjoining medical office where the "patient" completed a patient information form. Mr. Wolf was then taken by one of Respondent's office assistants to the examining room for the eye examination mentioned above. Shortly thereafter, an office assistant entered the room accompanied by a man who was introduced as the doctor who would perform the eye examination. The "doctor" was actually Manuel Farinas. Notations in the medical record prepared on patient Wolf at the Respondent's office (Exhibit 3 in evidence) establish that the patient had a visual eye examination without glasses and was examined for conjunctivitis and also had cornea, lens and fundus examinations. Farinas examined Mr. Wolf by shining a flashlight type device into his eyes, having him read a wall chart, and by having him look through a lens in a machine that flashed charts on the wall until Farinas got the best subjective reading of visual acuity from the patient. The patient was also given a chart to read. Farinas diagnosed the patient as having a mild case of conjunctivitis and gave him a prescription for eyeglasses and a prescription for Vicollirum. Both prescriptions were written on blanks bearing the Respondent's name and office address. Upon completion of the eye examination, the prescriptions were written by Manuel Farinas for patient Wolf and were placed in a folder and given to the patient. The prescriptions were not signed by either Farinas or the Respondent. At no time during the patient's presence in the Respondent's office, did the Respondent either examine the patient or review and approve the medical prescriptions written for the patient, or supervise the medical examination activities of Farinas. The patient was then directed by Farinas through a door adjoining the Respondent's office to the Eyeglass Emporium to have the prescription for eyeglasses filled. Investigators for the Petitioner then re-entered the Respondent's office at that time and interviewed Farinas who was still in the room where the patient Wolf had been examined. After identifying themselves as investigators for Petitioner, Farinas was asked for identification. He identified himself as Dr. Manuel Farinas and admitted that he had written the prescriptions for patient Wolf. Respondent entered the room at that point and the Petitioner's employees identified themselves as investigators. In the presence of the Respondent, the investigator elicited statements from Farinas that he had examined patient Wolf and that he had written the two prescriptions for that patient as well as eliciting the statement that he was not licensed. The Respondent did not comment on any of those responses by Farinas at that time. Farinas then produced for Petitioner's investigators documents purporting to show that he had received medical training in Cuba. The Petitioner established through expert testimony of Dr. Lawrence T. Reese, who is a board certified opthalmologist, with a sub-specialty in retinal muscular disease, that a medical doctor does not receive the appropriate training in a general M.D. degree course of study to qualify him to either perform a thorough eye examination or to prescribe eye-wear for patients. Dr. Reese practices in Dade County, Florida and is affiliated with Parkway Regional Medical Center and Humana Hospital. He holds a voluntary faculty appointment at the University of Miami School of Medicine in Opthalmology. Dr. Reese is aware of the general standard of instruction in opthalmology in a medical school curriculum for the general M.D. degree granting institutions. This instruction, consists of from three to four hours of instruction, and is basically a laboratory study where the medical students examine each others' eyes. Thus, the general medical student who fails to pursue a specialty in opthalmology, receives only a bare minimum amount of training in patient eyecare and examination. A general or family practitioner would thus only have minimal involvement in the area of eye-care. Dr. Reese is aware of the generally prevailing standard of care of general practitioners in Dade County, Florida. Dr. Reese thus established that the extent of eye-care provided by general practitioners in that medical community is to visually look into the patient's eyes as a part of a general medical examination. This is a cursory eye examination at best. The visual examination consists of looking into the patient's eyes with an opthalomoscope in order to get a view of the optic nerves and surrounding fundus. If such a general practitioner/family practitioner examination shows that the patient's eyes appear to be normal, this is the extent of the visual examination performed. If problems are apparent, the general prevailing standard of practice dictates that the general practitioner or family practitioner refer the patient to a board certified opthalmologist. John Handwerker, M.D., is a licensed medical doctor in the State of Florida who has practiced medicine in Dade County for 33 years. His testimony corroborates that of Dr. Reese. Dr. Handwerker is not aware of any eye-care training provided by medical schools in M.D. degree granting programs. He is aware of the generally accepted prevailing standards of practice of medicine by general and family practitioners in Dade County and established that a family practitioner would not typically perform a refraction of the eyes for the purpose of prescribing eyeglasses. That standard would be the same for a general practitioner even if he has a sub-specialty in neurology, which is not a relevant sub-specialty to questions of eye-care. This type of practitioner would not have either the training or experience to perform such an examination. As established by both of these expert witnesses, a person who takes a patient's history, makes an examination of the patient's eyes and prescribes either medication or an optical lens or both, is engaged in the practice of medicine. Both medical experts established that if a licensed medical doctor authorizes an unlicensed person to take the medical history of a patient, perform the eye examination and write prescriptions for medication, or for optical lenses for that patient, and the extent of the licensee's participation in the process is either to merely sign the prescription or at most to review the patient's medical records, then that licensed medical doctor is not properly supervising an unlicensed person and is permitting an unlicensed person to practice medicine. As established by Dr. Reese, a thorough eye examination would consist of determining if the patient has a family history of eye disease, determining whether the patient is experiencing any particular visual problem, determining the refractive state of the patient's eyes (that is, visual acuity), and would include a check of various eye systems of the patient, such as the pupils and their reaction to light as well as the ocular motor system for eye movement (musculature). Additionally, a properly examined patient, should be checked for visual defects, have a slit lamp examination to determine the medical condition of the eyes (which consists of examining the upper and lower parts of the pupils under the eyelids), the patient's cornea should be checked for material in the eye fluid and in most instances a dilated examination of the pupil should be done to diagnose its condition. When all of these examinations and checks are performed the doctor can then reach a cogent conclusion concerning the overall health of the patient's eyes and make appropriate recommendations concerning care and treatment. A medical diagnosis that a patient's fundus is normal, cornea is normal and the lens is normal can only be made if the patient's eyes have been dilated. The fundus can be examined without dilating the patient's eyes, although dilation would give increased ability to examine it. Dilation of a patient's eyes is effected by the use of a prescription drug by medical practitioners who are experienced and who practice in the area of eye examinations and eye-care. Both patients Bruce and Wolf were diagnosed by Farinas as having normal fundus, cornea and lenses. But this diagnosis was made without a thorough eye examination because Farinas did not dilate their eyes to adequately check these systems. Although it is true that ready-made eyeglasses can be purchased at commercial department stores with or without a prescription, where a patient has visited a medical doctor's office and had his eyes examined and is given a written prescription for glasses, the patient then believes that he has received a proper, competent medical eye examination and is being prescribed glasses for valid medical reasons. Where an inadequately trained or unlicensed person performs visual examinations and writes medical prescriptions for glasses, a patient is being deceived or at least potentially deceived as to the correct assessment of the condition of his eyes. The testimony of the Respondent himself as well as Mr. Hullman, the operator of the Eyeglass Emporium, establishes that Farinas was known and referred to as "Dr. Farinas" during the time he was employed in Respondent's office. Farinas was introduced to Mr. Wolf as "Dr. Farinas" at a time when he was not (and still is not) licensed in Florida. Both Drs. Reese and Handwerker opined that where a general practitioner with a specialty in neurology permits an unlicensed person to conduct medical examinations and write medical prescriptions for eyeglasses or for medicinal drugs, and the extent of the licensee's contact with the patient is to sign prescriptions or review the patient's medical records, the licensee has failed to conform to generally accepted and prevailing standards of care recognized by reasonably prudent similar physicians under similar conditions and circumstances. The Respondent is not board certified in opthalmology and has had no residency training or other formal training in opthalmology outside the minimal general training described above, received in the course of preparing for his M.D. degree. The Respondent maintained that he has extensive experience performing medical visual examinations, but this testimony is not deemed credible because, as revealed by Petitioner's Exhibit 8 in evidence, during the informal proceeding before the Board where Respondent was also testifying under oath, he acknowledged that he had not performed medical visual examinations or refractions and had not written a medical prescription for eyeglasses in over 13 years, thus, his testimony that he has had extensive experience in performing medical visual examinations recently and during the period under consideration in the Administrative Complaint is not deemed credible. Although Respondent contends that he supervised the practice of Farinas, his testimony conflicts with competent evidence indicating otherwise. The supervision consisted of the Respondent allegedly reviewing the patient's records and signing prescriptions for eyeglasses or drugs written by Farinas. Although expert testimony has established that this does not constitute adequate supervision by a licensed medical doctor, in the case of both patients involved in this proceeding the eyeglass prescriptions were actually never signed. Although use of unsigned prescriptions is not necessarily illegal, it shows that Farinas was not supervised to any significant extent at all in his examination, care and treatment of patients who presented themselves to the Respondent's office for an eye examination. When patient Wolf was in the Respondent's office he was never examined by Respondent, nor was his prescription given him by Farinas ever reviewed by the Respondent, nor did the Respondent review his medical history, which he had provided in writing on a form provided by Respondent's office. Additionally, as established by witness Hullman, that witness returned unsigned prescriptions to the Respondent's office for the Respondent to sign after the prescriptions had already been filled by the opticianry and after the investigation into this matter had commenced. The Respondent signed the previously unsigned prescriptions and returned them to Hullman and thus it is established that at the time the prescriptions were executed and filled, the Respondent did not supervise the prescribing by Farinas nor the examinations to which the prescriptions related, both as to prescriptions of eyeglasses or drugs. Finally, it should be pointed out that Respondent was aware in April of 1982 that his use of Farinas in performing visual examinations and prescriptions as to eye-care patients was improper because of the visit to his office by Investigator Dorris Bruce. Two months later, however, patient Wolf went to the Respondent's office for an eye examination and was also examined by Farinas and tendered prescriptions by Farinas with no signature, supervision or other review of the procedure performed or prescriptions given by the Respondent. This was some nine months after Farinas first became employed in these capacities at the Respondent's office.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered finding the Respondent, Orlando C. Ramos, M.D., guilty, as charged in the Amended Administrative Complaint, of violations of Section 458.331(1)(g), Florida Statutes (1981); Section 453.331(1)(w), Florida Statutes, (1981), as well as a violation of Section 458.331(1)(t), Florida Statutes (1981), and that a fine of $2,000 be imposed and the Respondent's license to practice medicine be suspended for a period of three months. It is further recommended that the Respondent's licensure status be probationary for a one year period commencing at the conclusion of the three month's suspension, during which such probationary period his medical practice should be monitored by the Petitioner to ensure that such violations of the Medical Practice Act do not recur. DONE and ENTERED this 21st day of November, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 21st day of November, 1984.
