The Issue The issue for determination in this case is whether Respondent's license to practice medicine in the State of Florida should be disciplined for disseminating, or causing the dissemination of an advertisement that was false, deceptive or misleading in violation of Rule 59R-11.001, Florida Administrative Code, and Section 458.331(1)(x), Florida Statutes.
Findings Of Fact Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with the statutory authority under Chapter 458, Florida Statutes, to regulate the practice of medicine. Respondent, JONATHAN M. FRANTZ, M.D., is and at all material times has been, a licensed physician in the State of Florida, having been issued license number ME 0054884. Respondent graduated from the University of Miami School of Medicine in 1983, and thereafter entered a residency program in Opthamology at the Louisiana State University Eye Center in New Orleans, Louisiana, where from 1987 to 1989 Respondent was a Fellow in Cornea, External Disease, and Refractive Surgery. During his Fellowship at the Louisiana State University Eye Center, Respondent participated in the initial research projects involving the Excimer Laser Procedure, which at that time was exclusively an investigational device. The term "investigational device" is a technical term used by the Food and Drug Administration (FDA) and medical researchers. The term means that a device has yet to be approved for treatment of human patients by the FDA and that its use is limited by the FDA to research investigations. The Excimer Laser is a device that projects a wavelength of light over the surface of the cornea to treat nearsightedness and astigmatism. The wavelength of light removes irregularities on the surface of the cornea or anterior corneal tissue in order to change the refraction of the eye and improve the patient's eyesight. At all material times, the Excimer Laser was an investigational device. Radial Keratotomy is, and at all material times was an FDA approved procedure for the treatment of nearsightedness and astigmatism. The Excimer Laser procedure differs from Radial Keratotomy in that Radial Keratotomy is a procedure in which incisions are made to the corneal tissue itself. The incisions allow for the flattening of the center of the cornea, and thus, unlike the Excimer Laser, actually change the structure of the cornea. During his Fellowship, Respondent participated in primate and human research involving the Excimer Laser, and assisted in the development of protocols for use in the first treatment of human patients with the device. Respondent received a research award from the National Eye Institute for his investigative work with the Excimer Laser. Respondent has published several articles in medical literature relating to the Excimer Laser. Respondent is certified by the American Board of Opthamology, and is a member of the American Academy of Opthamology. After completion of his Fellowship, Respondent entered private practice in Ft. Myers, Florida. While in private practice, Respondent continued his research work with the Excimer Laser. In 1990, Respondent was selected as one of a small group of physicians to conduct Excimer Laser investigational treatments on patients. As a principal investigator, Respondent treated patients with all degrees of nearsightedness and astigmatism. In May of 1993 Respondent was employed by Eye Centers of Florida located in Ft. Myers, Florida. Respondent performed Excimer Laser investigational procedures while so employed. At this time, the Excimer Laser procedure was also being performed by Dr. James J. Rowsey, Jr., Chairman of the Department of Opthamology at the University of South Florida in Tampa, Florida. The Excimer Laser procedure performed at the University of South Florida offered a different protocol than that offered by Respondent at the Eye Centers of Florida. Respondent was the only Opthamologist in Florida offering Excimer Laser procedures for patients with all degrees of nearsightedness and astigmatism, as well as offering Radial Keratotomy. In addition to his expertise in Opthamology, Dr. Rowsey has extensive expertise in the area of ethical medical advertising. On May 23, 1993, the following advertisement was published in the Charlotte Sun Herald, a Florida newspaper: Jonathan M. Frantz, M.D., corneal specialist with the Eye Centers of Florida, invites you to join him for an exciting lecture on the newest breakthroughs in eye surgery - the Excimer laser and Radial Keratotomy (RK). Eye Care Centers of Florida is the only eye care center in Florida that offers both options. Come to our free seminar and find out how you can reduce your need for glasses or contact lenses. EXCIMER LASER RADIAL KERATOTOMY THE CORRECTION OF NEARSIGHTEDNESS AND ASTIGMATISM FREE ADMISSION AND SCREENING FOR EXCIMER LASER AVAILABLE PLEASE BRING GLASSES AND/OR CURRENT EYE GLASS PRESCRIPTION WEDNESDAY, MAY 26 7:00 PM FIRST FEDERAL BANK BUILDING 3524 D TAMIAMI TRAIL (SECOND FLOOR) PORT CHARLOTTE RESERVATIONS 1-800-226-3377 OR 1-813-939-3456 EYE CENTERS OF FLORIDA Helping You See Your Best 4101 Evans Avenue Fort Myers, Florida (Caution: The Excimer Laser is an Investigational Device. Limited by Federal Law to Investigational Use.) The advertisement also contained Respondent's picture, and the logo for the Eye Centers of Florida. The advertisement was composed by a marketing agency retained by the Eye Centers of Florida. Respondent was generally aware of the contents of the advertisement, but did not give specific approval for the placement of the advertisement. Respondent was aware that the advertisement of the Excimer Laser required cautionary language stating that the procedure was an investigational device limited by the FDA. The advertisement clearly states that the Excimer Laser is an investigational device limited by the FDA. The advertisement is a public invitation to attend a lecture given by Respondent concerning the Excimer Laser and Radial Keratotomy. At the lecture, Respondent explained that the Excimer Laser was an investigational device. Thereafter a person seeking Excimer Laser treatment was given a consent form that explained in detail the investigatory nature of the procedure. As a principal investigator Respondent was limited in the number of patients he could treat with the Excimer Laser. Respondent received an economic benefit from the treatment of patients with the Excimer Laser. As a result of the investigational efforts of Respondent and other medical researchers, the Excimer Laser was proved to have beneficial results in the treatment of nearsightedness and astigmatism. Subsequent to the publication of the advertisement, the Excimer Laser received FDA approval. The advertisement was reviewed by Norman S. Levy, M.D., Ph.D., an Opthamologist, and Director of the Florida Opthamologic Institute in Gainesville, Florida. As an expert in Opthamology, Dr. Levy opined that the advertisement published in this case was deceptive in that the advertisement implied that the Excimer Laser and Radial Keratotomy procedures were equally available, and the experimental nature of the Excimer Laser procedure was not clear from the advertisement. The advertisement was also reviewed by Dr. Rowsey, who opined that the advertisement was not misleading or deceptive, that the advertisement clearly contained cautionary language stating that the Excimer Laser was at that time an investigational device, and that the advertisement was merely a public invitation to a lecture to obtain more information regarding these procedures. In this respect, Dr. Rowsey has specific and extensive experience with the Excimer Laser, as well as in medical ethics, and his opinion on this issue is deemed more credible. There is no evidence that a patient of the Respondent's was deceived or mislead by the advertisement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner, the AGENCY FOR HEALTH CARE ADMINISTRATION, enter a final order dismissing the Administrative Complaint filed against Respondent JONATHAN M. FRANTZ, M.D., in the above-styled case. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of January, 1996. RICHARD HIXSON, 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 January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3773 Petitioner's Proposed Findings of Fact. 1.-6 Accepted and incorporated. Rejected to the extent that Respondent personally approved the advertisement. Rejected to the extent that a lay person could be misled. Rejected as not supported by the weight of evidence. Respondent's Proposed Findings of Fact. 1.&2. Accepted and incorporated. 3. Rejected as irrelevant. 4.-.7. Accepted and incorporated. 8.&9. Rejected as not necessary. 10.-12. Accepted and incorporated. 13. Rejected as not necessary. 14.-16. Accepted and incorporated. 17. Rejected as not necessary. 18.-26. Accepted and incorporated. COPIES FURNISHED: Joseph S. Garwood, Esquire AHCA - Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Lauro, Esquire Barnett Plaza, Suite 3950 101 East Kennedy Boulevard Tampa, Florida 33602
Findings Of Fact Upon consideration of the oral and documentary evidence produced at hearing, the following relevant facts are found: At all times pertinent to this proceeding, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about May 8, 1980, Respondent entered into a lease agreement with Cole National Corporation to lease 154 square feet of space as an optometric office in the location of the retail store of Sears, Roebuck and Co. at 1420 Northwest 23rd Boulevard, Gainesville, Florida. Respondent practiced in that location approximately two days per week until on or about October 1, 1982. Respondent's optometric office was located in a Sears, Roebuck retail store next door to the "Sears Optical Department," in which eyeglasses and contact lenses and other optical merchandise could be purchased. Respondent's office was identified by a large sign overhead reading "Optometrist," in the same print as the sign above the Sears Optical Department. In addition, a small plaque on the door leading into Respondent's examination room read "Dr. L. A. Schwartz, Optometrist." During the time he practiced at the 1420 Northwest 23rd Boulevard location of Sears, appointments could be made with Respondent by calling the Sears Optical Department telephone number. The phone was answered "Sears Contact and Lenses Center" by employees of Cole National Corporation, which controlled and owned the Sears Optical Department. The Cole employees were not paid for this service by Respondent. Respondent had no telephone listing in either the yellow or white pages of the Gainesville, Florida, telephone directory between May, 1980, and July 12, 1982, the date of the Administrative Complaint. The Cole National Corporation employees maintained Respondent's scheduling book and made tentative appointments for his prospective patients, although Respondent customarily would call the patient back to confirm the date and time of the appointment prior to the time of the scheduled visit. Respondent's hours of service and fee information were also given to prospective optometric patients by Cole National personnel. Respondent accepted the Sears, Roebuck and Co. credit card as payment for optometric services. Sears then billed the patients directly and Respondent received monies billed to the patients in full through Sears on a monthly basis, regardless of whether the patient paid the bill fully monthly or carried the debt over to succeeding months. Respondent, pursuant to his lease with Cole National Corporation, was precluded from selling optometric supplies to his patients. Rather, Respondent would in all cases issue prescriptions for optometric goods and supplies, such as glasses and contact lenses, which in most cases were placed on a prescription blank bearing his name. At times, however, when Respondent did not have prescription forms available bearing his own name, he would use such a form from the Sears Optical Department, crossing out all references to Sears and inserting his name and address in place of that of Sears Optical Department. On or about February 22, 1982, the Sears Optical Department mailed letters to various consumers in the Gainesville area. These letters, in part, advised that Respondent, an independent doctor of optometry, was available for eye examinations in his private office in the Sears building and that he could be reached for appointments at a telephone number which was listed in the telephone directory for Sears Optical Department. The evidence in this cause establishes that Respondent's office location at all times material hereto was maintained separately from both Sears, Roebuck and Co. and the Sears Optical Department. In addition, the record in this cause fails to in any way establish that Respondent ever held himself out as an employee or representative of either Sears, Roebuck and Co. or the Sears Optical Department. In fact, the record clearly establishes that both Respondent and employees of the Sears Optical Department always indicated to the consuming public that Respondent was an independent optometric practitioner.
The Issue Whether the Respondent, the Department of Revenue, acted in a fraudulent, arbitrary, illegal or dishonest manner in deciding to award a contract to the Intervenor, Recognition Equipment Incorporated, based upon the Intervenor's response to Request for Proposal No. 90/91-261?
Findings Of Fact The Parties. The Respondent, the Department of Revenue (hereinafter referred to as the "Department"), is an agency of the State of Florida. On or about June 24, 1991, the Department issued Request for Proposal on No. 90/91-261 (hereinafter referred to as the "RFP"). The Petitioner, Scan-Optics, Inc. (hereinafter referred to as "Scan- Optics"), is an unsuccessful responder to the RFP. The Intervenor, Recognition Equipment Incorporated (hereinafter referred to as "REI"), is the successful responder to the RFP. Scan-Optics and REI have standing to participate in this proceeding. Development of the RFP. For a number of years prior to the formal hearing of this case, the Department has been interested in purchasing optical scanning equipment for use in processing certain tax returns filed with the Department. The Department made inquiries and performed investigations concerning available optical scanning equipment as a result of its interest in the equipment. The Department contacted private producers of optical scanning equipment, including Scan-Optics and REI, and other state agencies that already had acquired optical scanning equipment. The Department observed Scan-Optics and REI optical scanning equipment in use by purchasers of the equipment in Florida and other States. During the Spring of 1991, the Department's budget was sufficient to allow the Department to purchase optical scanning equipment and the Department actually began to plan for such a purchase. The Department ultimately decided to acquire the equipment through a request for proposal instead of an invitation to bid because the Department knew what function the equipment was to serve but not how best to fulfill this function. James R. Evers, the Assistant Director of the Department's Division of Tax Processing, was assigned responsibility for drafting the specifications for the equipment to be acquired through the request for proposal. Mr. Evers travelled to several States with agencies that already had acquired optical scanning equipment, observed the equipment in use and discussed the equipment with personnel familiar with the equipment. Mr. Evers acquired and reviewed the specifications used in Florida and in other States in purchasing optical scanning equipment. Mr. Evers acquired requests for proposals and invitations to bid from other States and reviewed them. After preparing the specifications for the equipment to be included in the RFP, the Department submitted the specifications to the Information Technology Resource Procurement Advisory Council (hereinafter referred to as the "ITRPAC"). The ITRPAC was created pursuant to Section 287.073(5), Florida Statutes, and is composed of the Director of the Division of Purchasing of the Department of General Services, the executive administrator of the Information Resource Commission and the Director of the Governor's Office of Planning and Budgeting. The ITRPAC, pursuant to the duty imposed on it by Section 287.073(5)(b), Florida Statutes, reviewed and approved the Department's specifications. The weight of the evidence failed to prove that the Department's actions in drafting the RFP were fraudulent, arbitrary, illegal or dishonest. Issuance of the RFP. On June 24, 1991, the Department issued the RFP, No. 90/91-261, "Scanning Equipment Operation". Scan-Optics reviewed the RFP and concluded that several of the requirements of the RFP were product-specific; that only REI's equipment could meet some of the specifications. Based upon Scan-Optics' concerns, Scan-Optics sent a letter to the Department objecting to the RFP as "being a directed procurement to an individual company, namely Recognition Equipment Incorporated." In particular, Scan-Optics questioned why the features on pages 10 through 13 "which define a single vendor's product specifications . . . " were "mandatory" features. Scan- Optics requested that all REI-specific requirements be removed from the RFP. Pursuant to the RFP, a pre-proposal conference was held by the Department on July 16, 1991. This conference was attended by, among others, representatives of Scan-Optics and REI. The purpose of the pre-proposal conference was to provide written responses to written questions submitted by prospective vendors. Prospective vendors were informed through provisions of the RFP of the following concerning modifications to the RFP: Any question concerning the RFP was required to be submitted in writing. No interpretation of the RFP would be considered binding unless issued in writing by the Department. See paragraph 5 of the General Conditions of the RFP. Paragraph 5 of the General Conditions of the RFP also provided that protests to any part of the RFP were to be filed in writing as specified in Rule 13A-1.006, Florida Administrative Code. Section 1.4 of the RFP provided the following: No negotiations, decision, or action shall be initiated or executed by the offeror as a result of any discussions with any Department employee. Only those communications which are in writing from the purchasing office may be considered as a duly authorized expression on behalf of the Department. During the pre-proposal conference written questions that had previously been submitted by prospective vendors, including Scan-Optics' question concerning the "mandatory" features of section 3 of the RFP, and the Department's written responses thereto were distributed. Some discussion of the questions and responses also took place and some oral questions were answered. During the pre-proposal conference the Department's representative answered specific questions concerning the Department's desire to acquire "full multifont, set upper case, lower case alpha/numeric and hand print" capability. The questions to, and the comments of, the Department's representative during the pre-proposal conference were not reduced to writing or otherwise included in the RFP. Although the Department answered the oral questions asked during the pre-proposal conference, the Department's answers were not inconsistent with the intent of the Department evidenced in the RFP as discussed, infra. The evidence failed to prove that the Department's actions during the pre-proposal conference were fraudulent, arbitrary, illegal or dishonest in light of the clear directions of the RFP concerning modifications thereto being in writing. In response to Scan-Optics' initial complaint about the RFP, the Department changed its "mandatory" features, beginning at Section 3.2 of the RFP, to "desired" features. This the Department did through the issuance of Addendum No. 1, which was issued by the Department after the pre-proposal conference on July 17, 1991, and included all written questions submitted prior to the conference and the Department's responses thereto. No other written modification to the RFP was made by the Department other than Addendum No. 1 and the attached written questions and responses. Other than the questions raised by Scan-Optics concerning the vendor- specific issue and the written questions attached to Addendum No. 1, no written clarification of the RFP was requested by Scan-Optics or any other prospective vendor. No written protest to the RFP was filed by Scan-Optics or any other prospective vendor. The evidence failed to prove that the Department's actions in issuing the RFP or it actions between the issuance of the RFP and the filing of proposals by vendors (i.e., the conduct of the pre-proposal conference) were fraudulent, arbitrary, illegal or dishonest. Purpose of the RFP. The RFP included the following "overview" of why the Department issued the RFP: The Department of Revenue is planning the purchase of scanning equipment to enhance its data entry capabilities. The Department currently utilizes the Tartan Data Entry System to capture data from tax returns and related documents in a key to disk environment. . . . Scanning equipment would enable the Department to capture handwritten or typed data through optical character recognition. It is estimated that over 90% of typed data and 70% of handwritten data can be captured through optical character recognition. The initial application of Intangible Tax Returns represented over 68 million keystrokes during the last year. . . . . Joint Exhibit 1 (Tab D), section 1.2, page 1. The Department provided the following more specific indication with regard to what it was seeking through the RFP: It is the intent of the State to procure a total turn-key system comprised of all equipment, software, and services associated with optical scanning/optical character recognition of source data to provide output data for further processing at Florida Department of Revenue via magnetic tape or telecommunications. The system must be current state-of-the-art, allowing for future integration of imaging techniques into the scanner system as a field upgrade without replacing installed equipment. . . . A turn- key proposal is envisioned which will include installation, the design of the initial forms, scanner and edit and reject/re-entry system programming, operations and programmer training on-site, and any other support services essential to the successful operation of the system. It is requested that the successful vendor propose a minimum of 100 hours of software support for future applications to be allocated at the discretion of the Department. Reference Current System for details regarding the two Intangible Tax Form(s) and Documentary Tax Forms which we propose as initial scanning applications. We believe that the Section below appropriately sets forth the hardware and software sub-objectives including a scanner/imaging system, but we would like any potential Offerors to know that our overall objectives are a continuing improvement in all areas of operation at Florida Department of Revenue. In order of importance, the following are our goals: . . . . Joint Exhibit 1 (Tab D), section 3.1, page 9. The RFP went on to list a number of objectives (generally referred to as lower costs, enhance taxpayer service, improve quality, accelerate cycle time and decrease paper handling) and approximately 30 "desired" features the Department wanted vendors to address. Joint Exhibit 1 (Tab D), sections 3.2 through 3.31, pages 10-16. There were three forms attached to the RFP which the RFP indicated the Department intended to process with the system initially purchased pursuant to the RFP. Each form was identified and the potential data to be collected was identified by indicating the data elements currently captured, their size and their class. Although the data elements currently captured included only numeric data for two of the forms and numeric and some alpha data for the third form, the RFP did not specify that all data currently captured would necessarily be captured as a result of the RFP. The RFP also indicated that "[s]ubstantial changes to the layout will occur at design time" indicating that the forms were to be redesigned to accommodate a vendor's proposed method of collecting data from the forms. The RFP did not require that the Department acquire equipment which would read all Department forms which may ultimately be processed with optical scanning equipment or even that the exact three forms attached to the RFP for initial processing be processed as a result of any purchase under the RFP. The intent of the Department reflected in the RFP and as explained during the hearing of this matter was for vendors to provide the Department with details concerning their full capability (equipment and costs) to process Department materials with their optical scanning equipment and allow the Department to select a combination of equipment which would initially allow the processing of the three forms, in whatever format could best serve the Department's needs, and allow the Department to later upgrade and increase its use of optical scanning equipment. The RFP requested that vendors identify each component of their systems, including all recommended features for the initial task. Joint Exhibit 1 (Tab D), section 5.2, page 19. Vendors were also required to provide itemized prices for all components of their proposals: This tab must show the itemized prices for all components to include hardware, software, cables/connectors, shipping, installation, training, maintenance, start-up supplies/ equipment and any other goods/services. Pricing information must include all items that may be needed to provide a configuration of equipment and software to the Department. Any recurring charges must also be shown. Any quantity or price discounts offered in the proposal should be clearly stated. Pricing information must be submitted in the formats provided. It is imperative that adequate pricing information be included in the proposal. The Department cannot purchase any item against the proposal if adequate pricing information is not included in the proposal. Therefore, pricing information should be provided for optional features, equipment, software and services that are not a required part of any particular configuration herein, but may be desired if changes become necessary to any configurations purchased by the Department. . . . . . . . Joint Exhibit 1 (Tab D), section 5.2, page 20. Responses to the RFP. On or about August 6, 1991, Scan-Optics, REI and GTE Vantage Solutions submitted responses to the RFP. All responses to the RFP were determined to be responsive to the RFP and were evaluated and scored. The evidence failed to prove that the Department's determination that the responses to the RFP were responsive was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; General. Section 4.3 of the RFP established the criteria for evaluation of proposals to the RFP. A total of 35 points were available for "costs", 30 points for "functional requirements", 30 points for "future requirements" and 5 points for "tax related experienced". The Department established a four person committee (hereinafter referred to as the "Committee"), to review and evaluate proposals to the RFP. Those individuals were Mr. Evers, George Brown, Larry Neilson and Gerald Johnson. Pat Gonzalez, an employee of the Information Resources Commission, also served as a non-voting member of the Committee. Subsequent to the filing of the proposals to the RFP, the Committee met on several occasions to discuss scoring criteria and to review lists of equipment submitted by each vendor. The members of the Committee reviewed and scored each proposal individually. After individually scoring each proposal, the Committee met and reviewed the individual scores. The individual scores were averaged and tabulated by Ms. Gonzalez. REI received an average score of 30 points for the functional requirements of section 3 of the RFP, an average score of 23 points for section 5 of the RFP and 5 points for section 6 of the RFP. Scan-Optics received average scores of 24.19, 12.5 and 5, respectively, for these three categories. Adding the scores for cost, discussed infra, the final tabulation of scores was as follows: REI 85.16 Scan-Optics 76.69 GTE Vantage 54.72 Based upon the foregoing, the Department decided to award the contract under the RFP to REI. Evaluation of the Proposals to the RFP; Costs. On August 6, 1991, when the proposals to the RFP were first opened, a preliminary bid tabulation sheet was completed. REI's proposed unit price was $1,389,025.00, and Scan-Optics' proposed unit price was $774,868.00. The Committee subsequently reduced the unit price of REI's proposal by $440,658.00, from $1,389,025.00 to $948,367.00. This reduction was made based upon a decision of the Committee, after a review of the REI proposal, to select a configuration of REI's equipment which the Committee believed comported with the Department's intent as evidenced by the RFP and would perform the tasks envisioned in the RFP. This decision was reasonable and consistent with the RFP in light of the following: The RFP informed vendors that the Department reserved the right to select any configuration of equipment submitted by vendors. Paragraph 7, General Conditions of the RFP, provided, in pertinent part: As the best interest of the State may require, the right is reserved to make award(s) by individual item, group of items, all or none, or a combination thereof; to reject any and all proposals or waive any minor irregularity or technicality in proposals received. . . . At Tab 11, Section 5 of the RFP, it was provided, in pertinent part: Offerors are required to include all equipment and software availability for their series or family of equipment proposed. The Department shall use these to determine the final ordered configuration from the selected proposal and from time to time, for additional equipment or software. This will also allow the Department the option of selecting equipment from State contract or under this RFP/Contract. This will also allow the Department to implement functions either undefined or unforeseen. The Department reserves the right to acquire any and all of the equipment, software and services necessary to meet the requirements of this proposal. Vendors were also required by Tab 11, Section 5 of the RFP to submit itemized prices for all components of a proposal: "Pricing information must include all items that may be needed to provide a configuration of equipment and software to the Department." REI's proposal included its entire array of equipment with itemized prices. This information allowed the Committee to equalize the vendors' proposals and, thus, allow a fair comparison of the two vendors. It also allowed the Committee to perform its task of deciding what configuration of equipment would best meet the Department's needs. Scan-Optics' proposal did not include separate itemized prices. Therefore, the Department was not able to decide the most advantageous configuration of Scan-Optics' equipment. Without the reduction in costs, REI's proposal was more extensive and more expensive than Scan-Optics' proposal. The Committee discussed the matter and questioned the Department's purchasing director as to whether REI's proposal could be reduced pursuant to the RFP to make it more compatible with the RFP. After being assured that such a reduction was permissible under the RFP, the Committee removed some of the REI proposed vocabulary kits and the costs of those kits. The Committee was unable to make a similar reduction to Scan- Optics' proposal because Scan-Optics had not itemized the cost of its equipment. With the reduction in REI's unit price made by the Committee, REI received a total of 27.16 points for the cost component during the evaluation process. The total score awarded to REI was 85.16. If the Committee had not given REI the reduction in unit price, REI would have only received 7.26 points for cost and its total score would have been 65.26. Scan-Optics received 76.69 total points (including 35 points for "cost"), which is higher than the points REI would have received but for the Committee's reduction of REI's unit price. REI was contacted by the Department to verify that the Department's understanding of the pricing information contained in REI's response to the RFP was correct. The evidence failed to prove that this contact allowed REI to provide any additional information to the Department or was otherwise improper. The Department did not contact Scan-Optics because Scan-Optics had not provided any information upon which the Department could have evaluated Scan-Optics' proposal in a similar manner as it had REI's. Therefore, there was no similar conclusion reached concerning Scan-Optics to be verified. The evidence failed to prove that the Department's evaluation of the costs of the vendors or the award of cost points to REI or Scan-Optics was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; An Oklahoma Tax Commission Evaluation Form. Prior to the evaluation of the proposals to the RFP Mr. Evers requested that an evaluation form used by the Oklahoma Tax Commission be provided to him. Mr. Evers made this request because he wanted to use the evaluation format he knew the Oklahoma Tax Commission had used. The evaluation form provided to Mr. Evers included the actual results of the Oklahoma Tax Commission's evaluation of proposals it had received. REI was awarded the Oklahoma Tax Commission contract. Mr. Evers provided a copy of the Oklahoma Tax Commission's evaluation to one of the members of the Committee and told him to give a copy to one other member. The evidence failed to prove if the fourth member and Ms. Gonzalez were provided a copy. The evaluation general point scale on the Oklahoma Tax Commission evaluation form was used by the Committee: Item not bid or does not meet specifications. Partially meets specifications. Meets specifications. Exceeds specifications. Substantially exceeds specifications. ? Need additional information from vendor. Although Mr. Evers could have avoided all appearance of impropriety by distributing a blank Oklahoma Tax Commission evaluation form, the weight of the evidence failed to prove that Mr. Evers' actions in distributing the Oklahoma Tax Commission evaluation form was fraudulent, arbitrary, illegal or dishonest. The evidence failed to prove that the Committee was in fact influenced by the Oklahoma Tax Commission evaluation form in any substantial way. I. Evaluation of the Proposals to the RFP; REI's TARTAN XP80. REI's proposal included equipment named the TARTAN XP80. This equipment is the basic optical scanning system of REI. The XP80 system proposed by REI is capable of including from 40 to 720 templates. The Department, after evaluation of the proposals, decided that the XP80 with only 40 templates would be sufficient to meet the Department's initial goal as set out in the RFP. The Department concluded that it was not necessary to acquire the XP80 with its 720 template capacity. The 40 template system is the system which the Committee evaluated with regard to the cost of the REI proposal. Section 3.17 of the RFP included the following desired characteristic: Optical Character Recognition - The document scanning system must be capable of employing both feature matching and feature analysis recognition techniques. The system must be capable of processing all standard OCR fonts in single font, multiple font, or multi-font mode under program control. The Offeror must provide a list of all fonts recognized by their system and any restrictions that apply. Vendor to define number of fonts recognized by his system, i.e., single font, multiple font, omnifont, and multifont. The specifications of Section 3.17 of the RFP were not "mandatory" requirements of the system ultimately to be acquired by the Department. The Department requested information concerning these capabilities, but did not specify in the RFP that the system it would ultimately purchase for its initial project would contain the specifications of Section 3.17 of the RFP. In light of Scan-Optics own challenge to the provisions of section 3 of the RFP as "mandatory" and the Department's decision to eliminate the reference to the provisions of section 3 as "mandatory", it is clear that there was no requirement that the ultimate system acquired pursuant to the RFP had to be capable of processing all standard OCR fonts in single font, multiple font, or multifont mode under program control. The evidence failed to prove that REI did not provide information concerning its capabilities to meet the specifications set out in Section 3.17 of the RFP or that the information provided was inaccurate. Two of the forms to be initially processed (forms 601I and 601C) only required capability to read numeric characters. The third form (form 219) could, in a limited number of instances, contain numeric and alpha characters. In evaluating the proposals, the Department decided that, to the extent that alpha characters may be contained on form 219's, the alpha characters could be ignored without creating significant problems in processing. The Department's conclusion that the XP80 with only 40 templates can handle the initial task contemplated by the RFP was based upon the fact that the forms may be redesigned and the conclusion that the number of instances when alpha characters appear will be insignificant enough to ignore. There was evidence presented that the XP80 with only 40 templates cannot efficiently and successfully process the three forms to be initially processed. There was also evidence that the XP80 with only 40 templates will not be successful even if the forms are redesigned. The weight of the evidence failed, however, to substantiate this claim. Whether the XP80 with only 40 templates can successfully process the three forms depends upon the environment in which the forms are completed. It is possible that if the exact environment is known so that the number and type of fonts that may be used is known, only 40 templates can process the forms coming from that environment. The Department has not determined what exactly the environment in which the forms will be completed is. The Department did, however, consider the probable environment in reaching its decision. More importantly Scan-Optics did not prove what that environment is. Nor did Scan- Optics prove that the environment is, or will be, one which will prevent the XP80 with only 40 templates from being successfully used as contemplated by the RFP. The evidence proved that an XP80 with a minimum of 200 templates up to a maximum of 350 templates could be used to successfully carry out the task contemplated in the RFP even in a random environment (one in which any number of fonts might be used to complete a form). If up to at least 280 templates were purchased the XP80 could handle the processing of the forms and, adjusting the score of REI for the additional costs and additional performance characteristics of an XP80 with up to 280 templates, REI would still be the highest scorer. Exactly where the cut-off between the number of additional templates which it may be necessary to acquire according to evidence presented by Scan-Optics (between 200 and 350) and the resulting reduction in REI's score to below Scan- Optic's score would occur was not proved. The evidence failed to prove that the actions of the Department with regard to its decision to acquire an XP80 with as low as 40 templates was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; Table C. Table C of the RFP required that vendors list any optional features, which would enhance optical scanning operations: "LIST ANY OPTIONAL FEATURES WHICH ENHANCE PERFORMANCE OF THE SCANNING EQUIPMENT OPERATION". Joint Exhibit 1 (Tab D), page 30. REI did not provide a completed Table C with its proposal. REI's proposal included additional vocabulary kits containing from 40 to 720 templates and the cost of those kits in Table B of its proposal. Table B was to be used to provide the following: "LIST EACH AND EVERY COMPONENT AND FEATURES REQUIRED FOR INSTALLATION AND FULL OPERATIONAL STATUS." REI's proposal was consistent with these instructions. The fact that the vocabulary kits involved in the award of points for costs were included on Table B and were not included on Table C does not mean that the Department could not reject vocabulary kits as unnecessary for its initial purchase based upon other information contained in REI's proposal. The inclusion of the kits on Table B merely indicates that, to acquire REI's total capability with an XP80, up to 720 templates are required for "FULL OPERATIONAL STATUS." That does not mean that the Department intended or was required by the RFP to actually acquire "FULL OPERATIONAL STATUS." Section 3.9 of the RFP provided the following desired feature: Document Imaging - The proposed document scanning system must be capable of being field upgraded with image cameras for both front and back imaging of documents. Imaging must occur on both sides of the document in a single pass. The proposed system must be capable of taking partial images of the document within the confines of windows, zones, or strips. When and if imaging is added to the proposed system, it must not slow any other operations or functions of the system below that of normal throughput speed of the identical system without the added imaging capability. The following question, submitted in writing to the Department, and the following written answer from the Department, were included in Addendum No. 1: 48. Is the cost to retrofit to imaging included in evaluation criteria? Answer: Future costs will be considered. REI responded to section 3.9 as follows: Exceeds Requirement: The proposed TARTAN XP80 can be upgraded to imaging exactly as defined in Section 3.9. In addition, image output can be passed to an extremely wide range of image processing systems including those from IBM, NCR, Unisys, FileNet, Plexus and many others. Joint Exhibit 3 (Tab H), page 5. REI failed to list the equipment necessary to meet the desired feature of section 3.9, or the price of such equipment, on Table C of its proposal. This information, however, was included by REI on Table B according to the testimony of Mr. Evers. To the extent that Table C was not provided, REI's failure to provide the information to be contained thereon was a minor irregularity. The RFP did not require that the Department evaluate the proposals based upon the cost of future upgrades. The RFP only required that the Department determine the ability of vendors to upgrade and REI's proposal gave the Department sufficient information to accomplish this requirement. The evidence failed to prove that the Department's failure to reject REI's proposal because of its failure to provide Table C or that the Department's grading of REI's proposal in light of the failure to include a Table C with its proposal was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; The One- Year Warranty. The RFP required that a one-year warranty be included with each proposal. REI's proposal only included a 90-day warranty. REI's proposal, however, included the cost of one-year's maintenance costs of $61,587.00. The evidence failed to prove that the Department's acceptance of REI's warranty and maintenance costs was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; Grading of Sections 3.2 through 3.31. Addendum No. 1 to the RFP modified, among other things, three of the desired features of section 3 of the RFP. In particular, sections 3.5, 3.11 and 3.20 of the RFP were modified. The scores awarded to Scan-Optics by some of the members of the evaluation committee for its response to sections 3.5, 3.11 and 3.20 were lower than the scores awarded to REI. The evidence failed to prove the actual reason why the scores awarded to Scan-Optics pursuant to sections 3.5, 3.11 and 3.20 of the RFP were lower than the scores awarded to REI or that the lower scores were based upon the requirements of those sections without regard to the modifications of Addendum No. 1. The impact on the scores of Scan-Optics, even if attributable to error by the Department, would be minimal. The evidence failed to prove that even if the Department had graded Scan-Optics' proposal without taking into account the modifications of Addendum No. 1 to sections 3.5, 3.11 and 3.20, that the Department acted in a fraudulent, arbitrary, illegal or dishonest manner. Conclusion. Based upon the foregoing, it is concluded that the evidence failed to prove that the Department's actions from the time that it developed the RFP to the announcement of its proposed award of the contract under the RFP to REI was fraudulent, arbitrary, illegal or dishonest. Any unfairness to Scan-Optics was a result of the Department's broad discretion pursuant to the RFP to decide what to acquire as a result of the RFP and the apparent confusion of Scan Optics, and probably REI, caused by the RFP. The RFP was not, however, challenged.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order dismissing the Formal Written Protest and Petition for Formal Administrative Hearing filed by Scan-Optics, Inc. DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of January, 1992. APPENDIX Case Number 91-6545BID Scan-Optics and REI have submitted proposed findings of fact. The Department has indicated its intent to adopt the proposed findings of fact of REI. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Scan-Optics' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3 and 5. 2 4-5. 3 See 31-37. See 32. See 33. 6-7 Hereby accepted and see 33 and 64-69. Not supported by the weight of the evidence. See 31-37 and 64-69. 11 and 13. The third, fourth and seventh sentences are not relevant. The fifth and sixth sentences are misleading and not totally accurate--there was only one RFP and one ITB and they were included in Mr. Evers' file on REI. See 19-20. The last sentence is not relevant. 11-12 20 and 26. 13 26. 14 22-23 and 26. 15 Hereby accepted. 16 See 20. But see 22, 25 and 27-30. 17-19 See 22, 25 and 27-30. 48, 58 and hereby accepted. Hereby accepted. But see 31-37. 58 and hereby accepted. 32, 70-71 and hereby accepted, except the fourth sentence, which is not supported by the weight of the evidence, and the last sentence, which is not relevant to this proceeding. 24-28 Hereby accepted. Not relevant. Hereby accepted. 31 32. 32 41. 33 44. 34 48 and 50-51. 35 See 47-48 and 51 and hereby accepted. 36 50-51. 48-49 and 51 and hereby accepted, except the fifth and last sentences, which are not supported by the weight of the evidence. See 54-57. The third sentence mischaracterizes Mr. Evers' testimony and is, therefore, not supported by the weight of the evidence. Not supported by the weight of the evidence or not relevant. 40 56. 41-42 Not supported by the weight of the evidence. 43 See 60. 44 See 60-63. 45 Not relevant. 46-47 Not relevant. See 60-63 48 49-51 Not relevant. See 66-69. Not supported by the weight of the evidence. See 66-69. 52 See 45. But see 83-86. 53 Hereby accepted. 54 See 83 and hereby accepted. 55 Hereby accepted. 56 See 84-86. 57 Hereby accepted. 58 See 83 and hereby accepted. 59 See 84-86. 60-62 Hereby accepted. 63 See 84-86. 64 32. 65 74. 66 75. 67 76. 68 See 70-71 and hereby accepted. 69 Not supported by the weight of the evidence. See 77. 70 First sentence: hereby accepted. Second sentence: not supported by the weight of the evidence. Third sentence: hereby accepted as to the scores given REI; the rest of the third sentence is not supported by the weight of the evidence. 71 Not relevant. 72 See 80-81. The computation of maintenance cost ignores the apparent discount which is given, depending on the length of the maintenance period purchased. For example, if a year's maintenance is purchased, the costs is less than the monthly rate times. 73 Not relevant. See 60-63. 74 58. 75 Not relevant. See 31-37 and 60-63. 76 Not supported by the weight of the evidence. 77-79 and 81 Although these proposed findings of fact include correct quotations, other evidence was more persuasive. 80 Hereby accepted. 82 Not supported by the weight of the evidence. See 68. 83 Not supported by the weight of the evidence. See 65 and 68. 84 See 67. 85 67. 86 See 67. 87-88 Not supported by the weight of the evidence. See 68. Not relevant. See 68. 92 52. 93 Not supported by the weight of the evidence. See 31-37. REI's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 6. 2 7. 3 8. 4 9. 5 10. 6 11 and 13. 7 14. 8 15. 9 There was no proposed finding of fact 9. 10 18. 11 19-20. 12 20 and 26. 13 22 and hereby accepted. 14 22. 15 22 and hereby accepted. 16 29. 17 21. 18 26. 19-20 28. 21 24-25. 22 38. 23 41. 24 Hereby accepted. 25 42. 26-30 48. 31-32 48-49. 33 43. 34 40. 35 50-51. 36 44. 37 43. 38 45. 39 46. 40 39. 41 Hereby accepted. 42 59. 43 Hereby accepted. 44 See 61-63. 45 Hereby accepted. 46 See 37, 70 and 78. 47 77. Not relevant. Hereby accepted. 50-51 64. 52 59 and 65. 53 33 and 65. The last sentence is not supported by the weight of the evidence--there was some evidence presented. 54 67. 55-59 See 68. 60 See 83-86. 61 87. 62 Hereby accepted. 63 81. COPIES FURNISHED: James W. Linn, Esquire Rosa H. Carson, Esquire 1711-D Mahan Drive Tallahassee, Florida 32308 William E. Williams, Esquire Rex D. Ware, Esquire Post Office Box 1794 Tallahassee, Florida 32302 Gene T. Sellers Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in these cases is whether, as the district school board alleges, a teacher and a paraprofessional physically abused, mistreated, or otherwise behaved inappropriately towards one of their special-needs students.
Findings Of Fact The Miami-Dade County School Board ("School Board" or the "district"), Petitioner in these cases, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to these cases, Respondent Kamla C. Bhagwandin ("Dr. B.") was employed as an exceptional student education ("ESE") teacher in the Miami-Dade County public schools, a position which she had held for approximately 17 years. Dr. B. has earned a bachelor's degree in special education, a master's degree in English as a second language ("ESOL"), and a doctoral degree in educational leadership and organization. When the 2017-2018 school year started, Dr. B. was a special education teacher at South Dade Middle School ("SDMS"), where she taught a self-contained class containing 19 ESE students. At the beginning of the 2017-2018 school year, Respondent Darlene Taylor ("Taylor"), a paraprofessional, was assigned to Dr. B.'s classroom. Because Dr. B. had a relatively large class with nearly three times the number of students in other ESE classes at SDMS, substitute teachers were routinely assigned Dr. B.'s classroom to provide assistance. Thus, three adults typically were present in Dr. B.'s classroom during school hours. Tony Bermudez ("Bermudez") was one of the substitute teachers assigned to work in Dr. B.'s classroom during the 2017- 2018 school year. He was assigned to Dr. B.'s classroom about five times, his last day with her being August 31, 2017. That is the date of the event at issue, to which Bermudez, who has accused Dr. B. and Taylor of child abuse, is the district's only witness. Before turning to the disputed event, which occurred at the start of the school day, it will be useful to look at what happened immediately before and after the incident in question. At SDMS that year, the first bell summoning the students to class rang at 8:30 a.m., and the last bell at 8:35 a.m. Dr. B.'s regular practice was to escort her students from the cafeteria to the classroom between 8:30 a.m. and 8:35 a.m. It is undisputed that this is what she did on August 31, 2017, and that, by 8:35 a.m., Dr. B. and her students, including a 12-year-old autistic student named D., were in the classroom. Therefore, if anything unusual happened to D. that morning, as alleged, it happened no earlier than 8:30 a.m., and most likely after 8:35 a.m. It is undisputed that, on the morning of August 31, 2017, Bermudez informed Dr. B. (untruthfully) that he needed to go to the bathroom because his stomach was upset. He then left the classroom and proceeded directly to the office of Elizabeth Rodriguez, who he mistakenly thought was an assistant principal, but who was actually the school's test chairperson and ESOL chairperson. Ms. Rodriguez testified credibly at hearing that she had just returned to her office, to which she usually repaired after the last bell rang at 8:35 a.m., when Bermudez arrived. Bermudez came to her, she explained, "in the morning right after we had let the students into the classrooms." Later that same day, after Bermudez had accused Dr. B. and Taylor of wrongdoing, Ms. Rodriguez wrote and signed a statement describing her encounter with Bermudez. This contemporaneous statement is consistent with her final hearing testimony, but since it was written before any dispute about the time of Bermudez's visit had arisen, Ms. Rodriguez's initial account is particularly probative on that point. When the matter was fresh in her mind and she had no reason to hedge on the time, Ms. Rodriguez recorded the following: At approximately 8:30 a.m., Mr. Bermudez asked to speak to me in my office. (He was under the impression I was one of the Assistant Principals). He stated he wanted to inform the [person who assigns substitute teachers that] he no longer wanted to be assigned to the [special education] unit because of the aggressiveness. I asked him if the students were aggressive and he stated, "No, it's the adults". He elaborated by stating he had witnessed some things that were very upsetting and he had discussed it with his wife, who is also a teacher at another school and she advised him to speak to the principal. I assured him I would speak to the principal and to the ESE Program Specialist . . . on his behalf. I advised him to go back to the classroom and we would address his concern. By the time of the hearing, Ms. Rodriguez must have known that her contemporaneously recorded recollection of Bermudez's having approached her at "approximately 8:30 a.m." was not helpful to her employer's case against Dr. B. and Taylor because it leaves little or no time for anything untoward to have occurred in Dr. B.'s classroom that morning. Under questioning by the district's counsel, Ms. Rodriguez did her best to stretch the "approximately 8:30 a.m." time frame as wide as it would go, first to 8:40 a.m., and finally to "possibly" 9:00 a.m. Given her unqualified testimony about encountering Bermudez right after the students had gone to class (between 8:30 and 8:35 a.m.), however, and the contemporaneous statement that he had shown up in her office at "approximately 8:30 a.m.," the undersigned finds that Bermudez met with Ms. Rodriguez no later than 8:40 a.m. on August 31, 2017. This means that if Dr. B. and Taylor abused D., as Bermudez claims, then they did so in a hurry, for the students were not let into Dr. B.'s classroom until around 8:35 a.m., and Bermudez needed a minute or two to get from the classroom to Ms. Rodriguez's office. Ms. Rodriguez brought Bermudez to the principal, John Galardi, according to the latter, whose testimony on this point is credible, albeit inconsistent with Ms. Rodriguez's written statement. After Bermudez told Mr. Galardi that he had witnessed Dr. B. and Taylor abuse a student, Mr. Galardi called the school police department, which dispatched officers and detectives. Meantime, Mr. Galardi asked Bermudez to write a statement describing the incident he claimed to have observed. Bermudez wrote a statement, the first of several he would draft that day. When the detectives arrived, they asked Mr. Galardi if there were any surveillance videos that might have captured the incident. Mr. Galardi directed a custodian to retrieve the video from the closed-circuit TV camera in the hallway near Dr. B.'s classroom. The custodian brought out a video, which the detectives watched with Mr. Galardi. One of the detectives made a video recording on his cellphone of the monitor to which the surveillance video was being transmitted. This cellphone video, which runs about 67 seconds, is the footage that the district offered into evidence at hearing. The actual surveillance video was not offered. No information concerning its whereabouts was provided. Neither the custodian nor the detective testified at hearing about the circumstances surrounding the making of the cellphone video.1/ Putting aside the obvious chain of custody issues with the video, the quality of the derivative image is very poor. (Imagine using your cellphone to film the movie you're watching on TV, and then viewing the movie on your phone, and you'll get the picture.) Crucially, the detective cropped the image so as to eliminate the date and time stamp that, according to Mr. Galardi, the original surveillance video displayed. The thing that jumps out at the fact-finder when he watches this dubious video is that it not only fails to corroborate Bermudez's initial written statement, it actually contradicts him (if we assume, as the district contends, that the video depicts some portion of the event he claims to have witnessed). Although the record is silent as to when Bermudez first saw the video, there is little doubt (and the undersigned finds) that he had not viewed the recording before writing his initial statement. As the video begins, two figures (identified as Dr. B. and D.) emerge into the hallway, having exited the classroom, whose door——in a recessed entryway——is out of view. There is no indication of distress or discomfort in either individual's movements or posture, nothing consistent with a commotion or struggle. Although the video does not have an audio track, D.'s body language gives no suggestion that she is screaming or crying; rather, she appears to be composed, compliant, and unharmed. The pair does not remain outside the door to the classroom. Their faces are not visible. Dr. B. and D. immediately turn away from the camera, and walk calmly but purposefully down the hallway, towards glass doors at the far end. The two are walking side by side, and their body language suggests that Dr. B. is escorting D. The teacher might have her hand on the student's back, but that is not clear. What is clear is that Dr. B. is not pushing, pulling, or forcing D. to move. Before reaching the glass doors, Dr. B. and D. turn left, and it looks like they are about to enter a classroom. At this point, they are far from the camera, and the image quality is so poor that it is not possible to make out in detail what happens next. We can see, however, that Dr. B. and D. do not go into a classroom. Instead, they back up and return to the hallway, where they face each other for a few moments. There seems to have been a disturbance of some sort——perhaps D. has become uncooperative. Due to the graininess of the image and the distance of the subjects from the camera, the figures on the screen are practically silhouettes; they have their arms outstretched towards one another and might be holding hands. The image resembles that of a parent in a grocery store explaining to her pleading child that she cannot have a bag of cookies. There is nothing happening on screen that looks like physical abuse or violence of any kind. While this is going on, a third person appears, entering the hallway through the glass doors that are behind Dr. B. and D. in relation to the video surveillance camera. This person has been identified as Taylor. The arrival of Taylor prompts D. to hurry back to Dr. B.'s classroom, nearly breaking into a run. Dr. B. and Taylor follow, but at a normal walking speed. D. beats them to the classroom, obviously, and dashes into the recessed entryway, which takes her out of our view for more than ten seconds, as Dr. B. and Taylor make their way to the room. When the adults turn to enter the classroom, we lose sight of them as well, but for a split second we can tell that all three individuals are in the recessed entryway, probably because the door is locked. Suddenly, D. walks backwards into the hallway, as if to leave, and one of the adults (it is impossible to see which, as they are both off camera) promptly reaches out and takes hold of D. around the shoulder area. The district argues that the video shows Dr. B. grabbing D. by the head and jerking the student into the room. The undersigned rejects the district's interpretation of the blurry image because (a) the teacher appears more likely to have found purchase for her grip in D.'s collar and (b) D.'s head does not react as though she were being pulled by, e.g., the hair. The district further argues that, on the film, D. can be seen bending sharply at the waist, forming a 90-degree angle with her upper and lower body, proving that she was jerked with considerable force. Again, however, the undersigned rejects the district's interpretation of the ambiguous image. It must be stressed that this happens very fast and the video quality is very poor. As a result, people will see what they want to see. No doubt, therefore, some who see the video will agree with the district that someone yanked D. by the head. But the image does not persuade the undersigned that such is more likely than not what happened. Furthermore, Bermudez's hearing testimony, which for the first time included the detail that D. was bent over at a 90-degree angle, is unreliable, and not only because (as will be seen) Bermudez could not keep his story straight. It is highly unlikely that Bermudez could have seen this particular transaction, because he was in the classroom when it occurred, while D. and the adults were outside, in the entryway and hallway; indeed, the classroom door (although unseen in the video) was probably still closed. The undersigned infers that one (but not the only) reason Bermudez has given so many different versions of the disputed event is that he has been trying to tailor his testimony to the video. At any rate, based on the video, which is low-quality evidence, to be sure, but is at least more credible than Bermudez, the undersigned finds it to be as likely as not that D. instinctively bent forward under her own power, as opposed to someone else's forceful tug, because doing so probably would have improved her ability to resist, if she were inclined to struggle. Bending quickly towards the teacher would keep D.'s weight in front of her and her body lower to the ground, likely improving her balance, and also might loosen the teacher's grip. The main point, however, is that the video, with all of its limitations, is nowhere close to the knockout punch the district thinks it is. What it shows, at the end, is a teacher making a reasonable effort to stop a student from escaping, which could lead to a dangerous situation. This is what teachers are supposed to do. The district argues that this brief contact with D. constituted a manual physical restraint, which Dr. B. failed to report in accordance with district policy and state law. This argument is rejected. If the term "manual physical restraint" were interpreted so liberally as to include such incidental contact as this, which (for all that can be seen in the video) was reasonably intended to prevent a student from bolting, and which restricted the student's movement for about a second, the reporting burden would be unjustifiably heavy, and (worse) would create a perverse disincentive to reasonable protective intervention. Having reviewed what happened before and after the incident in question, and having looked at the video, the time has come to focus on Bermudez's many accounts of what he claims to have seen. As mentioned, Bermudez prepared three written statements on August 31, 2017. The first, though dated, does not reflect the time that it was drafted. Presumably, however, this initial statement was written in the morning, only a short time after the events described therein. The second states that it was signed by Bermudez at 12:50 p.m., less than four hours later. The third statement is typewritten and (as relevant to this case) is substantially similar to the second statement. On December 27, 2017, nearly four months after the disputed incident, Bermudez gave a deposition in the criminal case that the state brought against Dr. B. and Taylor. He also testified at their trial, but the transcript was unavailable for use in the instant hearing.2/ Finally, Bermudez testified at the final hearing of this matter. The following table summarizes the material portions of Bermudez's ever-changing testimony: Fist Written Statement 08/31/17 Second and Third Written Statements 08/31/17 Deposition 12/27/17 Final Hearing Testimony 02/19/18 No mention of D. screaming for 20-30 minutes about headphones. No mention of D. screaming for 20-30 minutes about headphones. For about a minute after the students entered the classroom, from the cafeteria, nothing unusual happened; it was a regular day. Then Dr. B. saw D. with headphones, walked up to D., and yanked the headphones away, which made D. act up and scream, for 20 to 30 minutes. "It had to be more than twenty, thirty minutes, around that time frame." T.B. had just gotten to the classroom. Dr. B. and Taylor were coming back from the cafeteria with the students. D. was complaining, and screaming intensely, "Headphones, headphones," over and over, for 20 to 30 minutes. D. was sitting down and never stood up. [Later, T.B. changes this to "she was maybe, like——kinda like in between, like between sitting and standing, kinda like."] Taylor wasn't in the classroom. Dr. B. and Taylor grabbed D. by the neck and threw her into a closed door with extreme force. No mention of D. being dragged out of the classroom. No mention of Dr. B. dragging D. by the ear. "This [is what] occurred today at approximately 9 a.m."] D. refused to sit down, so Dr. B. pulled D. by the hair and slammed her into the door. Dr. B. dragged D. out of the classroom. No mention of Dr. B. dragging D. by the ear. Taylor left with one of the kids. She returned with the child at the time Dr. B. picked up D. by the shirt. Taylor slammed or "bumped" the other child she was with (not D.) against the door. Dr. B. pulled D. by the shirt and slammed her face against the door. Then she dragged D. by the ear out the door. Taylor, who had reentered the classroom, remained inside, just sitting in her chair, waiting for Dr. B. to return. After 20-30 minutes, Dr. B. approached D. and told her to get up. Dr. B. grabbed D. by the sleeve and hair, pulled her out of the chair, and dragged her towards the door. Dr. B. slammed D.'s face against the door. Then, Dr. B. grabbed D. by her ear, and pulled D. outside by the ear. No mention of Dr. B., Taylor, or D. being out of the classroom. Dr. B. closed the classroom door, and T.B. couldn't see them, but he could hear D. screaming and crying outside. T.B. could hear D. screaming from the other side of the door. Dr. B. and D. were out of the classroom, in hallway, and T.B. couldn't see them, but he could hear D. screaming, for a few minutes. [Later, T.B. defines a "few minutes" as meaning "two to seven minutes."] Dr. B. and Taylor dragged D. by the hair and threw her into a desk with great force. After a couple of minutes, Dr. B. opened the door, dragged D. into the classroom by her hair, and threw her onto the desk in a rough, abusive way. Taylor was in the room with T.B., texting on her phone. When Dr. B. reentered with D., after being out of the class for a minute or two, Dr. B. had D. by the back of D.'s shirt, not pulling but holding onto her. Dr. B. guided D. to her chair, and D. sat down. After a few minutes, they reentered the room. Dr. B. had D. by the hair, and D. was bent at the waist at a 90 degree angle. Taylor came in behind them. Dr. B. pulled D towards the chair. Then Dr. B. threw or slammed D. into her chair, and D. was crying. Taylor hit D. on the back of the head, hard. Taylor walked into the classroom and hit D. in the back of the head, in a rough and very violent manner. No mention of this in the deposition. T.B. testifies at hearing that he couldn't remember it then. While D. was at her desk, Taylor walked behind D., told her to shut up, and smacked her in the back of the head. The material discrepancies are plain to see. The undersigned will discuss a few. Starting with the first statement, notice that Bermudez's original account is very straightforward and has just three salient details: (i) Dr. B. and Taylor threw D. into the door; (ii) together, they threw D. into her desk; and (iii) Taylor, by herself, hit D. in the head. Notice, as well, that this statement, prepared right after the event supposedly occurred, places Dr. B. and Taylor together in the room for the entire relevant time, and they never leave the classroom with D. The video shows something else completely. Contrary to Bermudez's statement, Taylor was not, and could not possibly have been, present in the classroom before Dr. B. and D. emerged into the hallway, as shown at the beginning of the short clip. We know for certain that Taylor was not there because she shows up later in the video, entering through a door at the other end of the hallway. Yet, in his most contemporaneous statement, Bermudez gets this critical detail badly, undeniably wrong, saying that Taylor was not only there, but was an active participant to boot. Conversely, the only scene in the video that could possibly raise an eyebrow——when someone grabs D.'s collar to prevent her from escaping——is not mentioned in Bermudez's first statement. Given the striking irreconcilability of Bermudez's first statement and the video, the undersigned wonders how anyone looking at the video on the morning of August 31, 2017, could not have questioned Bermudez's veracity or inquired further as to whether the custodian had retrieved the correct video footage. By 12:50 p.m., however, Bermudez had begun to back and fill. The undersigned suspects that before writing the second statement, Bermudez had watched the video, or been told of its contents. Yet, the changes to his story are so ham-fisted, how could no one have noticed? In the revised statement, without explanation, Taylor is not present when Dr. B., alone, flings D. into the door and, later, onto her desk. Now, conveniently, Bermudez tells us that Dr. B. dragged D. out of the classroom, and that they were gone for a couple of minutes (approximately the length of the video clip). Taylor appears in time to hit D. on the back of the head, but she must return to the classroom to do so, as the video requires. Bermudez's story became richer with (inconsistent) details during the December 27, 2017, deposition, while omitting key elements of his original version(s). At hearing, forced to acknowledge the inconsistencies, Bermudez made excuses: he was nervous, was on vacation, wasn't prepared, and didn't have an attorney. These are not persuasive. Think about it. Bermudez was the only witness in a criminal trial that might have put two people behind bars, and he was too nervous and unprepared to testify truthfully? At the final hearing, Bermudez struggled to harmonize all of his prior statements, but the result was a hot mess. The undersigned finds him, ultimately, to be an unreliable and incredible witness, and his testimony is rejected as unbelievable. This leaves the district with the video, which, for reasons already discussed, fails to prove the charges against Dr. B. and Taylor. Moreover, Dr. B. testified that the video actually depicts events of the preceding day, which she described at hearing. The undersigned is inclined to believe her.3/ The fault for the video's ambiguity with regard to the date and time of its making belongs solely to the district. It was the district's unilateral choice to rely on a low-quality, derivative "home movie" in lieu of the original surveillance video——a shabby copy that just happens to omit the date/time stamp, which, incidentally, would likely belie Bermudez's most recent testimony (assuming the video was truly made on the morning of August 31, 2017). This is because there was not enough time after 8:30 a.m. for the so-called "headphones incident" (see the table above) to occur and allow for Bermudez to make it to Ms. Rodriguez's office by 8:40 a.m. It is not necessary to make exculpatory findings of fact based on Dr. B.'s testimony because neither she nor Taylor was obligated to prove her innocence. Determinations of Ultimate Fact The district has failed to prove its allegations against Dr. B. by a preponderance of the evidence. The district has failed to prove its allegations against Taylor by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order exonerating Darlene G. Taylor and Kamla C. Bhagwandin of all charges brought against them in this proceeding, reinstating them to their pre-dismissal positions, and awarding them back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 28th day of June, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2018.
The Issue The issue presented for decision herein is whether or not Respondent engaged in the conduct set forth in the preceeding paragraphs, and, if so, what, if any, disciplinary action is appropriate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the state agency charged with regulating the practice of optometry pursuant to chapters 455, 463, and 20, Florida Statutes. The Respondent is licensed to practice optometry in the state of Florida, having been issued license number OP-0001674. Respondent shares office space with Robert's Optical Center at 23 East Prospect Road in Fort Lauderdale. On or about January 8, 1986, Respondent performed an examination of visual analysis upon DPR's investigator Allison Lichtenstein. Lichtenstein used the alias, Allison Smith. During the course of the examination of Allison Lichtenstein Respondent failed to perform visual field testing. In addition to Respondent's failure to conduct a visual field test of Lichtenstein, Respondent also failed to perform the following minimum procedures: Pupillary examination, biomicroscopy and extra-ocular muscle balance assessment. At Lichtenstein's request, Respondent did not perform tonometry. After the Respondent's examination of Lichtenstein, she paid the examination fee to Robert Mann, an optician with Robert's Optical Center, Inc. Mann provided Lichtenstein with a copy of her prescription written on the Respondent's prescription form. (Petitioner's Exhibit 3). Mann is not a salaried employee of Respondent. Prior to Respondent's examination of Lichtenstein, Respondent was aware that Mann was writing prescriptions on his prescription pad. Despite this knowledge, Respondent allowed Mann to continue this practice and Respondent continues to allow Mann to collect fees and dispense receipts on his behalf. On or about January 8, 1986, Respondent performed an examination for visual analysis upon Petitioner's investigator, Mary Pfab. Pfab used the alias, Mary Parker. Dr. Mary Pfab is licensed to practice optometry in Florida, Tennessee, Virginia and North Carolina. She is currently engaged in the practice of optometry in Virginia. Pfab is familiar with the minimum procedures for vision analysis as required by rule 21Q-3.007, Florida Administrative Code. She was tendered and accepted as an expert witness in the practice of optometry. At the time of the examination, Pfab was wearing rigid contact lenses. Pfab told Respondent that she was then 28 years old and was taking the medication Ibruprofen. During Respondent's examination of Pfab, the following minimum procedures for vision analysis were not performed: pupillary examination and visual field testing. At Pfab's request, tonometry was not performed on her by Respondent. At the conclusion of Respondent's examination of Pfab, Pfab paid Robert Mann the examination fee. Respondent gave Pfab a copy of her prescription and Mann provided Pfab with a receipt on Respondent's prescription pad. Mann wrote Pfab's prescription on his pad. (Petitioner's Exhibit 2b). On or about April 2, 1986, Petitioner's investigator, Allison Lichtenstein revisited Respondent's office and conducted an investigation. She found that Respondent did not have a tangent screen, which is necessary to perform visual field testing. Corrective action has subsequently been taken by Respondent, and Respondent has now purchased a tangent screen. Respondent now includes visual field testing in routine eye examinations. Dr. David Chambers, a Florida licensed optometrist who has been engaged in the practice of Optometry in Florida since 1974, was accepted as an expert witness in the practice of optometry in Florida. Chambers testified as to the consequences which could result to a patient when an optometrist fails to perform the various required minimum procedures. A pupillary examination detects neurological problems produced by tumors, aneurysms or other diseases, particularly neurosyphilis. An optometrist who does not perform the pupillary examination could miss these problems and patients accordingly will not be referred to a neurologist as they should be. Visual field testing indicates the integrity of the eye's retina and detects a large family of diseases including glaucoma, pigmentation degeneration, diabetes and cataracts. Failure to performs visual field testing could result in the optometrist's missing these types of diseases which affect the visual system and the controlling nerve systems. Visual field testing and tonometry are two of the three procedures which detect glaucoma. The importance of performing visual field testing is increased when tonometry is not performed at the patient's request. Biomicroscopy detects lid and corneal diseases including allergic conjunctivitis, bacterial conjunctivitis, herpes, chlazions and aureola. These lid and corneal diseases could not be detected, diagnosed and/or referred for treatment by an optometrist who fails to perform biomicroscopy. The extraocular muscle balance assessment determines how well the two eyes work together. By failing to perform the extraocular muscle balance assessment, an optometrist could fail to diagnose a phoria or tropia problem. A phoria problem is a tendency for the eye to turn and a tropia problem is an actual turning of the eye. Failure to detect and treat these problems could result in the patient having headaches, seeing double, or using only one eye. John C. Danner is a real estate appraiser engaged in appraising commercial real estate property since 1975. Danner was received as an expert appraiser in commercial real estate. He is familiar with market rental values of commercial property in the Fort Lauderdale/Broward County area. Surveys conducted by Danner to determine the market rent for space near the Respondent's office reveal that the market rent for similar space is between $90 to $100 per month. Additionally, it would cost an optometrist between $300 to $400 per month to lease the type of equipment which has been provided by Robert's Optical to Respondent. Robert's Optical provides Respondent with both his office space and equipment for $50 per month. By the inducement of paying only nominal rent for office space and equipment, Respondent has engaged in the practice of optometry with Robert's Optical Center, Inc. Respondent does not maintain full and total responsibility and control of all files and records relating to patients. Rather, an optician with Robert's Optical Center provides patients with prescriptions written on the Respondent's prescription forms, and Respondent's patients pay their examination fees to an optician affiliated with Robert's Optical. Respondent charged Lichtenstein $25 for an "eye exam" (Petitioner's Exhibit 3) and charged Pfab $35 for a "contact lens exam" (Petitioner's Exhibit 2b). These examinations were not complete in that a number of the required minimum procedures were omitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent's license to practice optometry be suspended for three (3) months, and upon the conclusion of the suspension Respondent be placed on probation for a period of twelve (12) months under such terms and conditions as required by the Board of Optometry. An administrative fine be imposed upon Respondent in the amount of twenty-five hundred dollars ($2,500) payable to Petitioner within thirty (30) days after the entry of the Petitioner's Final Order. DONE and ORDERED this 4th day of November, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 November, 1987. COPIES FURNISHED: Robert Newell, Jr., Esquire Phillip B. Miller, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Edward Paul Kreiling, Esquire Parkway Professional Building 6151 Miramar Parkway Miramar Florida 33023 Tom Gallagher, Secretary 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 Mildred Gardner Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Petitioner received the proper grades on the November 1997 chiropractic examination.
Findings Of Fact Petitioner graduated in 1994 from a chiropractic university. He was licensed to practice in Michigan and saw 100-200 patients daily while in practice there. In November 1997, Petitioner took the Florida chiropractic licensure examination. The November examination consisted of three parts: technique, physical diagnosis, and x-ray interpretation. (A fourth part on Florida law is irrelevant in this case.) A passing grade is 75 on each of the parts, which are graded separately, not cumulatively. Petitioner earned a passing grade of 85.5 on the physical diagnosis part of the November examination. However, he earned failing grades of 60 and 67.6 on the technique and x-ray interpretation parts, respectively. Petitioner suffers from diabetic retinopathy, which resulted in neovascularization of both eyes with a rupture in the left eye. Petitioner was totally blind in this eye for several months until the blood drained out of it. The residual scar tissue formed a macula, or traction, that created a black spot in the center of Petitioner's vision with the left eye. This condition has not been corrected by surgery, and Petitioner has been left with a permanent blind spot in the field of vision of his left eye. When Petitioner first received his application for the Florida examination, he did not inform Respondent of his visual disability because it does not affect his ability to read x-rays in viewboxes, which, based on past experience, was how Petitioner assumed that the x-rays would be presented. Later, Petitioner learned that the x-rays were presented on slides projected on large screens for all of the candidates taking the examination. At the November 1997 examination, there were three screens for approximately 160 candidates. Two to three months prior to the test date, Petitioner contacted a regulatory specialist for the Board of Chiropractic to obtain the necessary accommodation, which would consist merely of assigning Petitioner a seat in the first row from the screen. When this person did not return Petitioner's calls, he contacted another person who was employed at the Division of Medical Quality Assurance. Trying to help Petitioner, she suggested that he bring a physician's note to the examination, and the test administrator would seat him up front. Petitioner did as he was told, but when he appeared at the test site, about 30-45 minutes early, he was told at the door that he could not even bring the note inside with him to show the test administrator. Petitioner entered the test room and found that he had been assigned a seat three rows from the back. He tried to explain his situation to a proctor, but was unable to get his seat moved or permission to approach the screen to see the x-rays better, so he proceeded to take the examination. When the x-rays appeared on the screen, Petitioner tried closing his left eye and squinting, but could not see the x-rays sufficiently to interpret them in this timed section of the examination. Respondent's mishandling of Petitioner's timely and reasonable request for an accommodation for this visual disability rendered the scoring of the x-ray interpretation part of the November examination arbitrary and capricious and devoid of logic and reason. Respondent's solution is to offer a free retest for this part of the examination. If there were no basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then a free retest would be Petitioner's sole remedy. However, if there is a basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then this is the preferred remedy because, for the reasons set forth in the conclusions of law, this remedy better restores Petitioner to the position in which he should have found himself after taking the November 1997 examination. In this case, it is possible to imply a correct score for the x-ray interpretation part of the November examination due to: 1) the clear nature of Petitioner's disability; 2) the clear results obtained six months later when Petitioner retook the x-ray interpretation part of the examination with no other accommodation besides being seated in the front row; and 3) the absence of any indication in the record that Petitioner enlarged his knowledge of x-ray interpretation between November 1997 and May 1998. In May 1998, Petitioner passed the x-ray interpretation part with a score of 82.3. It is found that Petitioner would have passed the x-ray interpretation part of the November 1997 examination if Respondent had made reasonable accommodation for his disability. It is further found that, eliminating the unreasonably adverse testing conditions at the November examination, Petitioner's proper test score for the x-ray interpretation in the November 1997 examination is 82.3. Petitioner's performance on the May 1998 examination does not inspire as much confidence on the technique part of the examination. Although he raised his score on the latter examination, he still scored only a 70, which is five points below passing. At this latter examination, Petitioner also failed the physical diagnosis part with a score of 73.7, even though he had passed it with an 85.5 six months earlier. This matter is discussed in the conclusions of law. Petitioner's strongest challenge to the technique part of the November examination is confusion concerning an instruction describing the patient as suffering from an "old compression fracture." Petitioner did not perform the manipulative technique, for which he would have received credit, because he was concerned that the fracture might not have healed; he thus performed only a soft tissue massage. There is insufficient ambiguity in the description of an "old compression fracture" to justify Petitioner's caution, especially considering that he did not avail himself of the opportunity to ask questions of his examiners. Petitioner's other challenges to the technique part of the November 1997 examination are without merit.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order awarding Petitioner a passing grade of 82.3 for the x-ray interpretation part of the November 1997 examination, in place of his invalid score of 67.6, so that he will be deemed to have passed the physical diagnosis and x-ray interpretation parts of the chiropractic licensure examination at the November 1997 administration. DONE AND ENTERED this 26th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1998. COPIES FURNISHED: Philip Andrew Cobb 18508 Orlando Road Fort Myers, Florida 33912 Anne Marie Williamson, Attorney Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether petitioner should have been awarded a passing grade on the clinical portion of the September 1990 optometry licensure examination?
Findings Of Fact As instructed, petitioner reported for the clinical portion of his optometry licensure examination with his own retinoscope. But the patient he brought with him was not suitable (as a subject for another candidate) because neither of her eyes had spherical objective and subjective error cali- brated in minus cylinder form within +6.0D to -6.0D and . . . an astigmatic correction objectively and subjectively within +0.75 to +4.0D or -0.75 to -4.0D. Respondent's Exhibit No. 1. Once this was discovered, petitioner left the examination site, recruited another patient, and returned in time to take the examination with a group of about ten other applicants. An information pamphlet explained beforehand what the candidates would be asked to do during the clinical examination: . . . You will be allowed 35 minutes to com- plete this section. Two licensed optometrists will independently observe and grade you. You may conduct the specified procedures in any appropriate order. A blank sheet of paper will be provided to you to record the results of your examination. You are allowed a brief period of time to make notes on the blank sheet of paper before you enter the examination room. Tests should be done on both eyes (including dilated eye). Points will be assigned according to the criteria listed below: Patient History (5 points) Chief complaint Personal medical history Personal ocular history Family medical history Family ocular history Follow-up Information (7 points) Follow-up as necessary on the above criteria. Visual Acuity (2 points) Pupillary Examination (6 points) Pupil size Direct and consensual response to light Afferent Pupillary Reflex Confrontation Fields Test (4 points) Confrontation Fields test should be done as described in Duane, J.D. Clinical Ophthal- mology, Harper and Row. Extra-ocular muscle balance (4 points) Versions Distance cover test Objective examination (retinoscopy) (8 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. Subjective refraction (12 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. In the second section, you will examine your own patient's eyes. This portion will be graded by examiners different from the exam- iners of Section 1. They will give you direc- tions and request certain views of the eye or ask for information as observe your performance through a teaching arm on the slit lamp or a teaching mirror on the BIO. They will assign grades independently. You will be asked to do the following procedures according to the specified criteria: Binocular indirect ophthalmoscopy (15 points) Accurately views and evaluates retinal land- marks as requested. Five points will be given for each of the three areas. Note: Patient will be in reclined position during this pro- cedure. We will supply a Keeler BIO headset. However, you will be allowed to use your own BIO if it has attached teaching mirrors. Biomicroscopy (anterior segment) (16 points) Demonstrates requested view of anterior struc- tures of the eye. Four points each will be given for performance related to: Cornea Anterior chamber Lens Anterior vitreous Goldman[n] tonometry (5 points) Accurately measures intra-ocular pressure. Biomicroscopy (posterior segment) (8 points) Accurately views and evaluates posterior pole landmarks as requested with two points each for four designated areas. Note: The Zeiss slit lamps are equipped with Hruby lenses. If you prefer a fundus contact lens, or a 90 diopter lens, you must provide your own lens. Gonioscopy (8 points) Accurately views and evaluates angle structure. To protect the patient, we will put time limits on the amount of time you will have to attempt each of the section two procedures. Timing will start after you receive the instructions from the examiner and will continue until you notify the examiner to grade the procedure. Respondent's Exhibit No. 1. After petitioner's return with a patient whose eyes met the examiners' criteria, he was tested in the manner the candidate information booklet had described, which is the same procedure that has been followed since 1986. Refractions Robert Roos, a 43-year-old compound myopic astigmatic (who was assigned the number 079), was the patient it fell to petitioner to examine in section one. Before petitioner saw Mr. Roos, three licensed optometrists independently evaluated Roos' eyes. After objective refraction or retinoscopy of his right eye, they recorded astigmatic orientation or axis values of 110o, 115o and 116o, spherical values of -2.75, -2.5 and -1.75 diopters, and cyllindrical values of - 1.0, -1.75 and -1.75 diopters. Their subjective examination of the same eye yielded axis values of 107o, 110o and 111o, spherical values of -2.25, -2.25 and -1.75 diopters, and cyllindrical values of -1.5, -1.5 and -2.0 diopters. After the examiners' retinoscopy and subjective refraction, but before the candidates evaluate the patients, their left eyes are dilated with drops containing 1.0% tropicamide and 2.5% neosynephrine, the same solution that has been used since 1983. The result is left-eyed cycloplegia, paralysis of the intraocular muscle which precludes normal pupillary response of the kind petitioner observed (and reported as +4) in Mr. Roos' right eye, just before performing the refractions. (Patients' left eyes are dilated so candidates can perform other procedures.) As required, petitioner performed his own objective refraction with a retinoscope. He reported an astigmatic orientation of 105o, assigned a spherical value of -0.75 diopters, and put the cylindrical value at -2.25 diopters, for Mr. Roos' (undilated) right eye. After subjective evaluation, he reported a prescription he said effected a correction to 20/20 (a claim no examiner had occasion to evaluate), an axis value of 100o, a spherical value of -1.25 diopters and a cylindrical value of -2.0 diopters. In keeping with the grading protocol applied evenhandedly to all candidates, petitioner's evaluations were compared, item by item, to those of the examiner who most nearly agreed with his conclusions. This yielded discrepancies of 5o, 1.0 and 0.5 diopters for the retinoscopic or objective refraction results; and of 7o, 0.5 and 0.0 diopters for the subjective results. In no case did his results fall between differing examiners' results, although he agreed with one examiner on one result. Petitioner received two points for the objective refraction portion of the test and three points for the subjective portion. Chamber Depth For section two of the clinical portion of the test, Mr. Roos returned to the candidate with whom he came to the examination, and petitioner turned to the eleventh-hour recruit who had accompanied him. Reading the prescribed script, an examiner instructed petitioner in these words: Estimate the depth of the anterior chamber using the Von Herrick-Shaffer technique. Remember that IV is wide open and I is narrow. Respondent's Exhibit No. 2. The anterior chamber is deepest at the center and shallowest near the limbus, where the cornea joins the sclera, and aqueous fluid filters out of the eye. Because the angle at the junction affects the rate of flow, the depth at the chamber periphery is more likely to be of clinical significance than the depth at the center. The Von Herrick-Shaffer technique is a means of measuring chamber depth at the periphery, and not in the middle: a slit lamp casts the cornea's shadow on the chamber floor, and the ratio between the length of the shadow and the width of the cornea is determined. By whatever technique, custom and practice mandate measurement of the depth of the anterior chamber at the edge. When petitioner reported the depth at the center of the chamber, neither examiner (both of whom evaluated independently) awarded any points. Tonometry The Goldmann tonometry portion of the test required candidates to gauge intraocular pressure by placing fluorescein on the white of the patient's eye, then placing a probe and aligning the mires of the tonometer. An examiner read to each candidate these directions beforehand: Add fluorescein to non-dilated eye. Perform applanation tonometry and indicate when you have the proper measurement. You will be given a maximum of 2 minutes to perform this procedure. Respondent's Exhibit No. 2. Because the first examiner gave petitioner full credit, and the second gave him no credit, he received half credit for this part of the examination. At hearing, petitioner testified that he was not ready for the second examiner to grade, and conceded that the mires were no longer in alignment when the second examiner checked. (The second examiner also noted a misplaced light source.) But petitioner, who had the prerogative to "indicate when [he] ha[d] the proper measurement," Respondent's Exhibit No. 2, and did so before the first examiner checked, said nothing to the second examiner (who followed closely on the first) to indicate that he felt the measurement was no longer "proper."
Recommendation It is, accordingly, recommended that respondent deny petitioner's application for licensure on the basis of the September 1990 optometry licensure examination, without prejudice to any subsequent application. RECOMMENDED this 10th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of August, 1991. COPIES FURNISHED: Alejandro M. Tirado 606 First Street Neptune Beach, FL 32266 Vytas J. Urba, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, 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
Findings Of Fact At all pertinent times, respondent Manuel P. Villaflor, M.D., held a Florida license as a physician, No. ME 0020072. Since the 1970's, he has engaged in the general practice of medicine in Daytona Beach. A former president of the Volusia County Medical Society testified that Dr. Villaflor was "a very capable general practitioner" (T. 465) and that he at one time had charge of the special clinics for indigent patients at Halifax Hospital. UNTIMELY DEATH K. D., a white male, was pronounced dead at 3:59 P.M. on October 19, 1985, a few days shy of his 34th birthday. The autopsy disclosed superficial abrasions, acute blunt trauma to K. D.'s face, scalp and right hand, and acute, diffuse subdural hemorrhage. A paper bag full of prescription medicine containers accompanied the body to the autopsy. Apparently because the labels indicated that Dr. Villaflor had written pain killing prescriptions for K. D., the medical examiner's office notified DPR. Some four months later, analysis of samples of K. D.'s blood and urine revealed that codeine, oxycodone, amitriptyline, also known as Elavil, nortriptyline, also known as Pamelor, and chlordiazepoxide, also known as Librium, had been present in the corpse in quantities "beyond the reference range for therapeutic use." Botting deposition, p. 6. The pathologist amended his initial conclusion that head injuries resulting from "multi-focal blunt trauma," id., p. 7, had caused K. D.'s death, by adding "multiple drug intoxication," id., as another cause of death. As far as the record shows, Dr. Villaflor never prescribed Elavil, Pamelor, Librium or their chemical equivalents for K. D. An osteopath whom K. D. saw toward the end of his life prescribed at least two of these medications, as well as medicine containing oxycodone. CONTROLLED SUBSTANCES UNCONTROLLED On November 15, 1985, Diane Rabideau, an investigator for DPR, called on Dr. Villaflor at his office. He was polite and cooperative. Ms. Rabideau had some difficulty understanding him; he is not a native English speaker, and he had recently suffered a stroke. But she understood well enough Dr. Villaflor's assertions that he did not believe K. D. to have been addicted to any drugs, and that he had not over-prescribed any medicine. Ms. Rabideau inspected the controlled substances kept in Dr. Villaflor's office. She found Tenuate Dospan, Restoril, Darvocet, Valium, Tylenol No. 4, Fiorinal No. 3, Xanax, Vicodin, Tylenol with codeine elixir, Dalmane, Anexsia, Centrax, "Tussend Ex. 1/2 oz.," Limbitrol, Equagesic, Phrenilin with codeine, Novahistine, Naldecon, Ativan, Nucofed, and "P.V. Tussin." When she saw them, they were not under lock and key. No inventory records reflected what was on hand and what had been dispensed. The parties stipulated that Dr. Villaflor "failed to maintain records of the[se] schedule controlled substances ... as required by Section 893.07, Florida Statutes"; and that he "failed to keep the[se] drugs ... under lock and key as required by 21 C.F.R. Section 1301.72." When Ms. Rabideau pointed out these omissions, Dr. Villaflor and his wife, who works with him in the office, said they would comply in the future. Mrs. Villaflor said she had not known of these requirements. A subsequent inspection by a DPR investigation found Dr. Villaflor in full compliance with reporting requirements governing controlled substances. K. D.'s PAIN On July 8, 1981, Dr. Villaflor saw K. D., apparently for the first time, at the Halifax Hospital Medical Center emergency room, and admitted him to the hospital. K. D. had sustained an electrical shock when he struck a high voltage power line with an aluminum ladder, as he was hurrying for shelter from a sudden rain. He lost consciousness "surrounded by a bluish flame." Petitioner's Exhibit No. 12. The electricity burned his feet and made his lower legs tender, as well. Discharged from the hospital, he visited Dr. Villaflor's office on July 15, 1981. In these proceedings, DPR does not question Dr. Villaflor's prescription of Percocet, a combination of Tylenol and oxycodone, for pain on that visit. As a teenager, K. D. had broken his collar bone in falls from motorcycles on two separate occasions. One accident involved a ride over a waterfall. When he was 21 years old, he "was smashed between a construction vehicle and a bulldozer," Petitioner's Exhibit No. 12, suffering "a severe crushing injury to his chest." Some ten years later he "still ha[d] very mobile ribs secondary to this injury," and persistent pain in his back and legs. In November of 1981, Dr. Kolin, a psychiatrist in Orlando, admitted K. D. to Orlando Regional Medical Center. A myelogram "revealed a mild L5 radicular lesion on the left, consistent with chronic myofascial pain and left L5 radiculitis." Petitioner's Exhibit No. 11. During this hospital stay, K. D.'s "narcotic medications were tapered and discontinued." Id. Dr. Villaflor sent copies of his records to Dr. Kolin, to whom Dr. Gillespie in Nashua, New Hampshire, had referred K. D. Apparently Dr. Villaflor never asked and Dr. Kolin never volunteered to forward Dr. Kolin's records to Dr. Villaflor. Gary G. Parsons, a vocation rehabilitation counselor, met K. D. on February 8, 1982. After K. D. made a perfect score on an aptitude test, a state agency subsidized his vocational training at the American Computer Institute. When K. D.'s training there concluded on January 4, 1983, Mr. Parsons tried to assist him in obtaining employment, but eventually concluded that K. D. could not hold a job because "his pain, and his limitation was greater than" (T. 283) Mr. Parsons had originally realized. K. D.'s pain or his physical condition "was primary in his conversation almost every time" (T. 283- 4) he and Mr. Parsons spoke. Even after the vocational rehabilitation file was closed on June 26, 1984, he came by Mr. Parsons' office twice. Both times K. D. seemed depressed to Mr. Parsons, who had recommended he go for counseling to the Human Resources Center, a community mental health center. Mr. Parsons saw K. D. for the last time on March 22, 1985. At least as early as August of 1984, K. D. mentioned suicide to Mr. Parsons as a possibility. In March of 1985, K. D. began weekly counselling sessions with Dr. Rafael Parlade, a clinical psychologist at the Human Resources Center. In these sessions "the two issues ... were his suicidal ideation combination with the depression, and the departure of his live-in girlfriend." (T. 273) He "still had a lot of pain." (T. 274) Dr. Parlade hoped K. D. would "increase his activities," (T. 276) so that with ... activity in his life more, he would focus away from his pain. Because for a period of time that was all he was living with. (T. 276) Dr. Parlade viewed decreasing the amount of pain medication as a secondary goal (T. 275), a result he hoped would flow from K. D.'s being less preoccupied with the pain he experienced continually. PAIN REMEDIES On January 31, 1983, K. D. visited Dr. Villaflor's office. Dr. Villaflor's notes for that day mentioned K. D.'s "Electrocution High Voltage in 7/81" and reflect a prescription for 50 tablets of Talwin. K. D.'s blood pressure, 120 over 70, is noted, and reference is made to a TENS unit, or transcutaneous nerve stimulator. Somebody at the Orlando pain clinic K. D. had visited had recommended one of these electrical devices to K. D., but it had proved ineffective against his pain. At one time or other, K. D. resorted to acupuncture and resumed wearing a corset of the kind originally prescribed for the back pain he experienced in the wake of the cascading motorcycle accident. Dr. Villaflor's office notes of April 15, 1983, record "Back Pain," a second prescription for 50 tablets of Talwin and another prescription for Xanax. On Nay 11, 1983, Dr. Villaflor's records again note K. D.'s "Back Pain" and indicate prescriptions for Xanax and Percocet. Nothing suggests Dr. Villaflor knew that Talwin had been dispensed to K. D. five days earlier, when K. D. appeared at his office on May 26, 1983. Essentially illegible, Dr. Villaflor's office notes for May 26, 1983, reflect prescriptions for Percocet and Xanax tablets, with which K. D. obtained 30 quarter milligram Xanax tablets on June 6, 1983, and 35 Percocet tablets on June 8, 1983. Xanax, a tranquilizer, is taken three or four times daily. Since Percocet in the quantity prescribed may be taken every four to six hours, it was "very much within reason" (T. 239) for Dr. Villaflor to prescribe more on June 9, 1983. When this prescription was filled on June 22, 1983, K. D. received 45 tablets. On July 7, 1983, Dr. Villaflor saw K. D. at his office for the first time in almost a month, and prescribed 35 more tablets of Percocet, also known as oxycodone with acetaminophen. The same day K. D. had the prescription filled, obtaining 35 tablets. Some three weeks later, on July 29, 1983, Dr. Villaflor again prescribed and K. D. again obtained 35 Percocet tablets. On the same day two other prescriptions Dr. Villaflor wrote for K. D. were filled, one for Atarax, an antihistamine sometimes prescribed in lieu of a tranquilizer, and one for Tylenol with codeine. This 35-tablet Tylenol prescription was refilled on September 7, 1983. With more and less potent pain medications, K. D. could take one or the other, as appropriate, depending upon the intensity of the pain. Since no other prescription for pain killing medication was written or filled until October 4, 1983, these prescriptions were, according to one of the Department's witnesses, "[w]ithin reason." (T. 243) On the October 4 visit, Dr. Villaflor noted "Back Pain from Electrocution" and recorded K. D.'s blood pressure as 138 over 70 or 80, before prescribing 45 Percocet tablets. That day, K. D. obtained the Percocet. He returned to Dr. Villaflor's office on October 13, 1983, complaining not only of back pain, but also of nausea and vomiting. Dr. Villaflor prescribed an additional 30 Percocet tablets. On October 15, 1983, K. D. acquired 50 tablets of the antihistamine Dr. Villaflor had been prescribing for him, "hydroxizine pam." On November 3, 1983, he obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets. On November 12, 1983, the antihistamine prescription was refilled as was, on November 16, the Tylenol No. 3 prescription. Perhaps Dr. Villaflor wrote the antihistamine prescription two days before it was first filled. The off ice notes are difficult to decipher. He wrote the Percocet and Tylenol prescriptions when he saw K. D. on November 3, 1983, at which time he recorded his blood pressure (132 over 70) and noted "back injury." On December 2, 1983, Dr. Villaflor's office notes reflect a visit and prescriptions for Tylenol No. 3, Percocet and the antihistamine. With respect to prescriptions filled on and after November 3, 1983, but before December 2, 1983, DPR's witness testified that the amount of medication was "a little high, but it's still, you know, again, acceptable for a person in pain." (T. 246) On December 2, 1983, K. D. obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets, the latter by virtue of a prescription that was refilled on December 14, 1983. On January 3, 1984, K. D. returned to Dr. Villaflor's office where he obtained prescriptions for Percocet and Tylenol No. 3. In March, Dr. Villaflor began prescribing a tranquilizer, Dalmane, instead of the antihistamine, but the new year progressed much as the old year had, in terms of Dr. Villaflor's prescriptions and documentation, and, apparently, of K. D.'s pain, as well, until early August. PHARMACIST CONCERNED On August 3, 1984, Dr. Villaflor prescribed for K. D., 200 "Sk- Oxycodone w/Apap" tablets, 200 Tylenol No. 4 tablets and 180 Dalmane capsules. K. D. had asked for them to take along to New England, where he travelled for an extended visit with his parents and others. This represented more than a two months' supply, and the prescriptions inspired a pharmacist, Paul Douglas, to telephone Dr. Villaflor's office before filling them. Mr. Douglas had called once before in the spring of the year, when he noticed that a total of 100 Tylenol (acetaminophen with codeine) No. 3 tablets and 60 tablets of Percocet (or the generic equivalent) had been dispensed to K. D. for use over a 24-day (April 2 to April 26, 1984) period. The pharmacist was concerned on that occasion because K. D. would have needed only 144, not 160, tablets during that period, if he had been taking no more than one every four hours. After his last telephone call to Dr. Villaflor's office, the pharmacist talked to K. D., telling him he would "not fill these medications again ... until the prescribed number of days." (T. 222). At no time, however, as far as the evidence showed, did the pharmacist actually decline to fill any prescription when presented. Back in Daytona Beach, K. D. presented himself at Dr. Villaflor's office on November 5, 1984, and received prescriptions for 45 tablets of Percocet, 55 tablets of Tylenol No. 3 and a quantity of Dalmane. All three prescriptions were filled the same day, and the prescription for Tylenol No. 3 was refilled on November 19, 1984. On December 5, 1984, K. D. appeared a second time after his return from up north, and Dr. Villaflor again prescribed all three drugs, this time specifying 50 tablets of Percocet and 50 tablets of Tylenol No. 3. K. D. caused these prescriptions to be filled the day he got them. The office motes for both these visits mention only electrical shock by way of explanation for the prescriptions. DOCTOR FALLS ILL On December 19, 1984, Dr. Villaflor had a massive cerebrovascular accident. He experienced "a dense hemorrhagic infarction ... sort of between the parietal and frontal temporal regions" (T. 64) of the brain. "Most people with intracranial bleeding, like Dr. Villaflor had, die." (T. 47) At least one of the physicians who attended Dr. Villaflor did not think he would survive the hospital stay. Paralyzed on his right side and unable to communicate, Dr. Villaflor did survive, and began speech and physical therapy. While Dr. Villaflor was indisposed on account of the stroke, Dr. Wagid F. Guirgis filled in for him. At no time did Dr. Guirgis and Dr. Villaflor discuss K. D. or his treatment. The day Dr. Guirgis began, K. D. came in complaining of severe pain in his lower back and legs. Dr. Guirgis prescribed Dalmane, 50 Percocet tablets and 50 Tylenol No. 3 tablets, the latter prescription being twice refillable. He suggested to K. D. that he see an orthopedist or a neurologist, and, on January 21, 1985, refused K. D.'s request to prescribe more Percocet. Later the same day K. D. went to Dr. M. H. Ledbetter's office. This osteopath prescribed 30 Percocet tablets to be taken twice daily, as well as Elavil and Tranxene. On February 4, 1985, Dr. Ledbetter prescribed the same medicines. On February 28, 1985, Dr. Ledbetter prescribed Elavil, Librium and 50 tablets of Percocet. On March 22, 1985, he prescribed the same things. On April 19, 1985, K. D. again visited Dr. Ledbetter. The same day he purchased Librium and 60 Percocet tablets at Walgreen's. Dr. Ledbetter prescribed Librium, Elavil and 60 tablets of Percocet, to be taken twice daily, when he saw K. D. on May 16, 1985. DR. VILLAFLOR RETURNS By now, Dr. Villaflor has very likely recovered from his stroke about as much as he ever will. He exercises regularly at the YMCA and has been attending medical education seminars in Orlando. (T. 76 ) Formerly right- handed, he still has a significant expressive speech disorder, walks with a cane, and has to do without the use of his right hand. His left side, however, was never affected. Dr. Klanke, the cardiologist and internist who treated Dr. Villaflor in the emergency room and for the three weeks he stayed in the hospital after his stroke, still sees him twice a year, principally as part of an effort to keep his blood pressure down. Although Dr. Klanke did not foresee his being able to, at the time of his discharge from the hospital, Dr. Villaflor returned to medical practice in May of 1985. K. D. appeared at Dr. Villaflor's office on May 21, 1985, five days after he had last seen Dr. Ledbetter. Dr. Villaflor prescribed 60 Percocet and 50 Tylenol No, 3 tablets for K. D., along with Dalmane and a vitamin (B12) injection. K. D. weighed 142 pounds that day and his blood pressure was also noted. The office notes report "same complaints." On June 18, 1985, Dr. Villaflor prescribed 60 Percocet tablets, the same number he prescribed on K. D.'s next visit, on July 17, 1985 , when K. D. limped "on left foot." In July, Dr. Villaflor also prescribed Dalmane and 50 Tylenol No. 3 tablets. On both visits K. D.'s weight (142 then 138) and blood pressure (122 then 120 over 80) were noted. On August 19, 1985, K. D.'s weight had fallen to 132 pounds but his blood pressure remained 120 over 80. Sixty Percocet tablets - one every four hours - were prescribed, as were 50 Tylenol No. 3 tablets. The diagnosis indicated in Dr. Villaflor's office notes was "electrocution." On September 16, 1985, Dr. Villaflor again prescribed Dalmane, Tylenol and 60 Percocet tablets. On October 17, 1985, K. D. limped to his last visit to Dr. Villaflor's office. His face bruised, K. D. complained that both feet were swollen, and reported that he had lost his balance and fallen down four stairs and over a concrete wall. For the last time, Dr. Villaflor prescribed Tylenol No. 3 and Percocet for K. D., 30 and 60 tablets respectively. Unbeknownst to Dr. Villaflor, K. D. had continued to visit Dr. Ledbetter, himself apparently unaware of Dr. Villaflor's renewed involvement with K. D. On June 7, July 5, July 26, August 27, September 16 and October 10, 1985, Dr. Ledbetter prescribed Librium, Elavil and Percocet. Dr. Ledbetter's office notes also reflect K. D.'s fall. REQUIRED PRACTICE Although each is "a moderate type of analgesic," (T. 324), both codeine and oxycodone are "narcotic derivatives ... [and] addictive in nature." Id. Dalmane "can be" (T. 221) "potentially addictive." Id. Because of his depression, K. D. "was not a good candidate" to entrust with several hundred pills at once. A physician who suspects addiction should limit prescriptions to "around ten to fifteen" (T. 326) tablets and "start checking with other pharmacies to make sure if a patient is getting drugs from any other source ... " Id. He should perform "very close and repeated physical exams" (T. 327) and be alert for "overdose side effects," id., such as dizziness, slurred speech, or staggering. The evidence here fell short of a clear and convincing showing that Dr. Villaflor was remiss in failing to suspect addiction, however. Dr. Ledbetter, who had similar, albeit similarly incomplete, information apparently did not suspect. The evidence did not prove the existence of side effects from the drugs Dr. Villaflor prescribed. Although, on his last visit to Dr. Villaflor's office, K. D. reported dizziness, the cause is unknown. On the other hand, his office records do not suggest that Dr. Villaflor took any steps to determine the cause of K. D.'s dizziness or of his swollen feet. Dr. Villaflor's treatment of K. D. fell below acceptable levels, if he failed to refer K. D. for periodic reevaluations of the underlying orthopedic or neurological problem, which his records suggest he did not do. His treatment was also inadequate for failure periodically to "get the medicine .. out of the system ... for a limited time" (T. 337) in an effort to learn what side effects, if any, the drugs he prescribed caused, either singly or in combination. This is so, even though the effort might have been frustrated, if K. D. had acquired the same medicines from other sources. Keeping complete medical records is important not only as a mnemonic aid for the treating physician, but also to make the patient's history available to other physicians who may succeed or assist the recordkeeper. A physician who has examined charts Dr. Villaflor kept before his stroke as well as charts he has kept since testified "that his charts, since the stroke, were in better order than they had been before he had his stroke." (T. 469). Since his stroke, his wife has assisted with the charts. Since Dr. Villaflor resumed office hours, he works no more than three hours a day. He has given up the hospital practice entirely. If he feels he is unable to treat a patient adequately he refers the patient to a specialist or, sometimes, to another family practitioner. On two or three occasions he has referred patients to Dr. Klanke, and in each case the referral has been appropriate. With respect to one of these patients, Dr. Klanke testified, "[H]e called up and told me the man had congestive heart failure and that's exactly what the man had." (T. 55). ONEHANDEDNESS Ordinarily, doctors use both hands in performing certain tasks often necessary in routine examinations. Use of a conventional sphygmomanometer requires one hand for the cuff and another for the stethoscope. "Percussion" involves placing one hand on the patient and tapping it with the other, listening carefully while, and, to some extent, feeling with the hand being tapped. Doctors usually use both hands for breast examinations. Performing pelvic examinations with only one hand "would be very difficult," (T. 82) as would be "adequate detail muscle strength testings," id., which, however, general practitioners do not do, as a rule. In case of a knee sprain, an examination to determine the range of motion is better performed with two hands. But a one-handed physician could examine the knee "and feel yes, the person is tender over the ligaments, or the joint is swollen. And in that situation he may turn around and say, `I would suggest that you see an orthopedic surgeon for treatment." (T. 86). Although the lack of the use of one hand would disqualify a physician from performing vascular surgery, for example, a general practitioner with good judgment and competent assistance can manage well enough in an office setting, with the use of only one hand. A one-handed physician can accomplish percussion with the help of an assistant who taps his hand. An assistant can support the patient's breast while a one-handed examiner palpates. Sphygmomanometers that can be operated with one hand are available. INTELLECTUAL REQUIREMENTS A physician must be able to learn if he and his patients are to have the benefit of advances in general medical knowledge, and the full benefits of the physician's own experience. Although would-be physicians are not required to attain a particular score on an I.Q. test, acquiring a medical education and passing licensing examinations require some intellectual ability. A physician "probably" (T.49) needs to be able to perform simple arithmetic. In some instances, appropriate dosages depend on the patient's weight and must be calculated; multiplication is required. Memory is essential in terms of the ability to retain medical knowledge. Although desirable, memory of a patient's history is less important, assuming adequate records are kept. Deductive reasoning is necessary in moving from a perception of symptoms to diagnosis and treatment. Pertinent questions must be formulated and communicated. Patients' answers must be understood. If patients cannot supply the answers, laboratory tests may be appropriate. It is the physician's job to make this judgment. PSYCHOLOGICAL EVALUATIONS Born in Manila on March 2, 1928, Dr. Villaflor began speaking English at an early age. The Wechsler Adult Intelligence Scale-Revised, I.Q. test, administered after his stroke, put his full scale I.Q. at 82. The examiner concluded that "his general fund of information is severely impaired," partly on the basis of these questions and answers: When asked where the sun rose, Dr. Villaflor, after a long pause, stated, "in the West." When asked how many weeks in a year, Dr. Villaflor stated, "56." When asked how many days in a year, Dr. Villaflor stated, "369." When asked how many senators in the United States Senate, he responded, "200." Petitioner's Exhibit No. 8. There was some indication that Dr. Villaflor had suffered a loss of medical knowledge, too. Asked to name the lobes of the brain, he named the frontal, parietal and occipital lobes, but omitted the temporal lobe. When a psychiatrist asked him to identify the symbols for microgram and milligram, "he was not forthcoming, he did not do this for me at that time." (T. 452). On the other hand, Dr. Villaflor answered appropriately in response to informal questioning by Dr. Derbenwick, Dr. Villaflor's treating neurologist, "with regard to common dosages of medications that would be used in, for example, treating infections." (T. 68) Another neurologist, Jacob Green, reported: Specific studies show that he could tell me it was the 26th of February, 1987, and he said "Gasville" several times instead of Jacksonville for location. He took 7 from 100, and got 93. Asked to take 5 from that and got 87 initially, then corrected it to 88. When asked which dose of Codeine would be appropriate, 1/2 gr., 1 gr. or 3 gr., he told me that the 1/2 gr. was the only appropriate dose. I asked him about Dilantin and he said he would give three a day at 100 mg. I asked about the dose of Digoxin and he says .1 and later corrected it to .25 (both these doses are correct). I gave him several hypothetical instances, such as a 50 year old male coming in with nausea and vomiting for a day and having some arm pain and some chest pain. He immediately picked up that this could be a heart attack and stated the patient should be hospitalized for further observation, which is certainly correct. DPR retained Dr. Green to evaluate Dr. Villaflor's mental status in the wake of the stroke. When Dr. Graham, the clinical psychologist, saw Dr. Villaflor, he had difficulty in naming objects; he slurred and mispronounced words. His ability to communicate verbally was and presumably is significantly impaired. (He did not testify at hearing.) Dr. Villaflor could not pronounce rhinorocerous [sic] or Massachusetts [sic] - Episcopal correctly. Houwever [sic], he could pronounce difficult medically related words ... Petitioner's Exhibit No. 8, p. 15. He could not recite the days of the week in chronological order, although he could recite them in reverse chronological order. When the clinical psychologist showed him a quarter and asked him what it was, Dr. Villaflor said, "nickel, coin, 25. He never could say "'quarter'" Petitioner's Exhibit No. 8, p. 14. Dr. Villaflor told Dr. Graham that his mathematical ability was the same after his stroke as before, and this may be so. The psychologist reported, however: He was unable to subtract 85 from 27 [sic] giving the answer 48. He was unable to multiple [sic] 3 times 17 correctly giving the answer of 44. Petitioner's Exhibit No. 8, p. 10. Dr. Miller testified that, when he asked Dr. Villaflor to multiply two times 48, Dr. Villaflor answered 56. On the other hand, Dr. Derbenwick, the neurologist, reported that Dr. Villaflor "was a little bit slow on complex calculations, [but] performed simple calculations without too much trouble." (T. 68) Altogether the evidence showed that Dr. Villaflor is not good at arithmetic, but did clearly establish to what extent his stroke was responsible. It was clear that the stroke, or some other impairment of the central nervous system, has affected Dr. Villaflor's intellectual functioning in many particulars, however. "All areas of the central nervous system are dysfunctioning." (T. 134) He was unable to repeat five digits in the order they were spoken. He was unable to repeat three digits backwards. His "short term auditory memory" is such "that his ability to remember factual information reported to him is severely impaired." Petitioner's Exhibit No. 8, p. 9. His visual memory is also impaired. (T. 145). Any score above 50 on th[e Category Booklet T]est is indicative [of] central nervous system impairment." Id p. 10. Dr. Villaflor scored 114 on this test, designed to measure "current learning skills, abstract concept formation, and mental efficiency." Id. Except for three scales - "Reading Polysyllabic Words," "Concept Recognition," and "Reading Simple Material" - Dr. Villaflor's scores on the Luria-Nebraska tests indicated central nervous system impairment. "Any interference between memory tests results in his inability to recall material on the first test." Id p. 16. "He is unable to recall more than two or three discrete units of information on a consistent basis." Id., p. 19. Dr. Villaflor visited Ernest Carl Miller, a psychiatrist, twice at DPR's behest. While he viewed Dr. Villaflor as "obviously an intelligent man" (T. 451), he reported problems with arithmetic; and noted Dr. Villaflor's "tendency to be somewhat concrete; that is verbally." Id. Dr. Miller concluded that Dr. Villaflor "would be better not engaged in the active practice of medicine." (T. 455). As Dr. Miller sees it [A]part from any discrepancy in knowledge, medical knowledge, which he may have as a product of his massive stroke, there may be stresses imposed on him by practice, which is adversely affecting his blood pressure and his physiology. (T. 455). Dr. Miller also reported that Dr. Villaflor did not, in the case of hypothetical cases they discussed, suggest a liver enzyme study to confirm a diagnosis of cirrhosis of the liver; and, in another instance, said that chest pain might indicate mitral valve prolapse. SURVIVING PATIENTS CONTENT Dr. Villaflor's stroke does not seem to have diminished his popularity with his patients. Some of them, like Vivian Patterson, do not believe the stroke has affected his mental ability. Georgetta T. Rogers, a nurse who suffers from high blood pressure and gout is impressed with Dr. Villaflor's thoroughness. She finds him easier to understand since the stroke than he was before. Frank Runfola, who views Dr. Villaflor as "a throwback to the old time doctor" (T. 428), testified that the physical examinations Dr. Villaflor has performed on him have been no less thorough since the stroke than they were before. Marilyn McCann, a patient for some ten years, has noticed no difference in the way Dr. Villaflor practices medicine since the stroke, except as far as his using his right arm. She testified that he still looks up whatever medications he's going to give me, he looks up whatever he has to do, and checks it out thoroughly to make sure what examination I have to have in the office. If I have any complaints, he does check them very thoroughly, he makes sure. (T. 433) John Peterson, Dr. Villaflor's patient for 15 years, has not "seen too much difference in [Dr. Villaflor's] alertness" (T. 445) since the stroke. On at least one occasion since Dr. Villaflor's stroke, David Smith took his father-in-law to the doctor's office. While Dr. Villaflor was checking the patient's blood pressure, he looked up at Mr. Peterson and said "Is your throat sore?"; and I said, "No sir." He said, "Let me see"; so I opened up my mouth and he looked in there and he said, "Your throat[']s, all red," he said, "It's infected"; he said, "and that's what's causing your eye infection." I had an eye infection ... He prescribed some medicine for me, and two days later the eye infection was cleared up and my throat wasn't red. (T. 485-6) On another occasion, after the stroke, Mr. Smith complained to Dr. Villaflor of dizziness. Dr. Villaflor diagnosed an ear infection and prescribed medicine. The dizziness abated. Like her husband, Sharon Smith believes Dr. Villaflor seems unchanged intellectually by the stroke. Liliosa Bohenzky, who suffers from hypertension and rheumatoid arthritis, believes the examinations Dr. Villaflor performs twice or four times a year on her back, neck, arms and shoulders, have been as thorough since the doctor's stroke as they were before. Rene Stenius, who has been a patient of Dr. Villaflor's for 12 years, "was very pleased when he did come back to work, even in a somewhat diminished capacity." One day in January of last year, Ms. Stenius stopped by Dr. Villaflor's office, although she had no appointment and had not indicated beforehand that she was coming. She had not seen Dr. Villaflor for three or four months. Nobody was in the waiting room until she arrived. When she was taken into an examining room, her chart accompanied her. Before he examined the chart, Dr. Villaflor inquired, "`Are you still taking a half a pill every six days?'" (T. 517) This was a reference to medicine for her hypothyroid condition that he had in fact prescribed some months back for her to take at the rate of a half pill every six days. It was on this same visit that Dr. Villaflor prescribed Tranxene for Ms. Stenius. Since the stroke he dictates prescriptions to his wife, then signs with his left hand. "Most physicians have the nurses fill out the prescriptions, if you really want to know the truth." (T. 51) When she wrote 375, he said, "`No, no, point'" and he was hitting the ... decimal point, and he was saying, `point, decimal,' `telling her where the decimal should be." (T. 519) Once the decimal point had been supplied, he signed Ms. Stenius' prescription for 3.75 milligram doses of Tranxene. Mrs. Villaflor, trained as a nurse but not licensed in Florida, began assisting her husband when he resumed practicing after his stroke. He asks the patient what his complaint is and she writes down the complaint. In measuring patients' blood pressure, she attends to "the cuff and he would read it," (T. 507) and tell her the reading, which she would write down. After he checked a patient's lungs, he might say, "`[C]lear, very good,'" id., which Mrs. Villaflor would write down. Mrs. Villaflor assists in examinations. For example, Ms. Stenius reported that she "helped with the insertion of the tool for the pap test, but Dr. Villaflor actually took the culture for the examination." (T. 515). When Dr. Villaflor examined patients' breasts, the patients themselves generally assisted. Under his direction, Mrs. Villaflor draws medicines from vials, swabs skin with alcohol and sometimes holds the skin while Dr. Villaflor administers intramuscular, intradermal and subcutaneous injections. A SAMPLE OF TWO DPR's own experts, Dr. Miller, the psychiatrist, and Dr. Green, a neurologist, agreed with a number of Dr. Villaflor's witnesses that the most appropriate means for determining whether Dr. Villaflor could practice reasonably skillful medicine reasonably safely would be to monitor his practice -- Dr. Green suggested monitoring for a week -- and to have physicians review the ... actual office records to check the appropriateness and quality of care. Dr. Green's letter to Mr. Coats dated February 14, 1986. Despite their consultant's advice, over a year before the final hearing took place, to do so, DPR never monitored Dr. Villaflor's practice nor caused any review of his charts to be undertaken. A family practitioner and an internist, both of whom practice in Daytona Beach, did monitor Dr. Villaflor briefly one afternoon, at Dr. Villaflor's lawyer's request. They observed him interview and examine two patients. He "would ask the patients questions which appeared to be adequate, as far as their complaints were concerned." (T. 470) If a patient could not understand him, his wife "interpreted." Dr. Villaflor examined each patient's "head, the heart, the lungs, their abdomen, their extremities." (T. 473). In the opinion of one of the doctors who monitored Dr. Villaflor's examination and treatment of these two patients, Dr. Villaflor's medical judgment "was quite adequate for the complaints they had and for the findings of his physical examination." (T. 470) At least one of the doctors examined an unspecified number of Dr. Villaflor's charts that afternoon and found them to be "quite adequate." The other monitor did not testify. SKILL AND SAFETY Dr. Villaflor has indicated and the evidence showed that he referred patients he felt he could not treat adequately himself. But there is a question how well he succeeds in identifying such patients. To some extent people can be counted on to recognize a medical emergency on their own and to seek out an emergency room, of which there are a number in the Daytona Beach area. A cardiologist testified he sees only about two seriously ill patients a year in his office. (T. 59) Nor are all medical problems difficult to diagnose. "Anybody in medicine can be right ninety-five percent of the time." (T. 55) But symptoms as familiar as fever and headache can be manifestations of the most serious disorders. A physician in private practice cannot prevent seriously ill people from presenting themselves in his office. Jacob Green, the neurologist DPR retained, testified that Dr. Villaflor is unable to practice medicine with reasonable skill and safety. Green deposition, p. 11. He was the only witness who so testified. When DPR sought to adduce the clinical psychologist's opinion as to Dr. Villaflor's ability to practice medicine safely and skillfully, objection was sustained on grounds that, Dr. Graham not being a medical practitioner, his opinion was not competent. Dr. Green posed a hypothetical case to Dr. Villaflor, when he saw him on February 26, 1987: [A] 60 year old male ... with a history of a fever of 101 degrees, achiness all over and a headache for two days. Dr. Villaflor said such a patient's blood pressure should be checked, and that he would prescribe "Tylenol for migraine." But fever does not necessarily accompany migraine headaches, and might, in conjunction with a persistent headache, be a symptom of encephalitis or meningitis. Green Deposition, p. 8. The record does not show how, frequently encephalitis or meningitis occurs either in the general population or among feverish 60-year old men with two-day- old headaches. Dr. Klanke, the cardiologist to whom Dr. Villaflor has referred two or three patients since resuming his practice, testified he had not noticed "any change [as a result of the stroke] in [Dr. Villaflor's] medical perception, or judgement, [sic] in dealing with the patients" he referred to Dr. Klanke. Dr. Derbenwick, like Dr. Miller, offered no opinion on how skillfully or safely (to others) Dr. Villaflor is able to practice medicine. Dr. Carratt, the only witness who had examined Dr. Villaflor's charts and watched him practice, albeit briefly, since he had suffered his stroke, testified that Dr. Villaflor could practice "reasonable medicine" as "long as he realizes his limitations." (T. 471.)
