Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 466.028(1)(y) and (m), issuing a reprimand, imposing a fine of $6,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August 1995.
Findings Of Fact Dr. Norman S. Bateh is the Petitioner in this matter and is an unsuccessful candidate on the optometry (theory and practice) licensing examination administered by the Respondent Board of Optometry on July 23 through 25, 1983. The development of, an examination by this Board reflects careful planning and consideration to ensure it fairly tests an applicant's knowledge of the subject matter. Prior to the preparation of a particular examination, a large pool of questions is developed from numerous professional and academic sources. After the examination is given, an analysis of it is conducted to see how the questions are received by the examinees. Examinees are given the opportunity to contest particular questions after the examination has been administered. Based on the Board's analysis of the test results, any question that was answered correctly by less than 58 percent of the examinees, in addition to those questions contested by the examinees are sent for verification to the Board's consultants, in this case Drs. Pappas and Chrycy. If, upon review by the consultants, it appears a question was incorrectly graded, ambiguous, unclear, or unfair; or if, in the consultant's opinion, there is any sort of problem with the question, all examinees are given credit for it. Passing grade on the 100-question, multiple-choice examination was 70 percent. Petitioner was initially awarded a grade of 66, but on review, at his request, of several of the questions which were graded as wrong, he was awarded two more points, which brings his grade to 68, still two points below passing. He was ranked 98th out of 103 examinees. Petitioner challenges four questions at this hearing as being either improperly graded or invalid because the question is incapable of a correct answer. These questions are numbered 8, 31, 73 and 78 and will be discussed individually, infra. If Petitioner's answer is determined to be correct, he will be awarded one point credit for that question. If any question is determined to be invalid for any reason, Petitioner will be awarded one point credit for that question. Question 8 on the examination read: Intraocular lens placement after cateract extraction results in an image magnification of approximately: 0% 4% 9% D. 25% Petitioner's answer on the examination was "C. 9%." The Board's correct answer was "B. 4%." Petitioner presented the testimony of an ophthalmologist, Dr. Schnauss, who has performed the operation to implant intraocular lenses between 500 and 600 times. As an expert who has used the lenses in his practice frequently and as consultant to one .of the major manufacturers of these lenses, e states unequivocally the degree of magnification is less than 1 percent, but not 0 percent. The further away from the location of the original lens of the eye, the greater the magnification. Since the lens implant is close to the plane of the original eye lens, there would be little magnification. Therefore, notwithstanding the conclusions of the Respondent's experts, Dr. Pappas and Dr. Chrycy, both consultants to the Board of Optometry, who cite Duane, Clinical Ophthalmology, Vol. I, as authority, no answer listed as an option on the examination is clinically correct. However, 52 percent of the candidates who took this particular examination gave the Board's correct answer. Question 31 on the examination read: Which of the following would you consider a positive scotoma: the blind spot Evan's angia-scotomas Seidel's scotoma muscae volitantes Petitioner's answer on the examination was "C. Seidel's scotoma." The Board's correct answer was "D. muscae volitantes." A scotoma is a blind spot in the patient's vision. Positive scotomas are those which are noticeable by the patient as he sees. Negative scotomas are not noticeable to the patient, but show up under test. A Seidel's scotoma, which is an extension of a blind spot, would not be a positive scotoma because the patient would not see it in the visual field. The Board's preferred answer, muscae volitantes, was attacked by Petitioner's experts as being inaccurate since they are bits of floating protein substance in the eye which, .though they are opaque and create a block to vision where they exist, are not true blind spots because they are not a defective area in the eye and they move. They are blind only because they temporarily block vision, not because they are a defect in the eye. Therefore, while muscae volitantes are, technically, positive scotomas where they exist, the question is inartfully drawn, vague and confusing, a conclusion supported by the fact that only 28 percent of the candidates got the correct answer. This low figure, to Mr. Gustafson, Respondent's test statistician, is insignificant. However, a question so confusing that only 29 of 103 examinees get it right and which is capable of such substantial meritorious argument on both sides is truly vague. Question 73 on the examination read: A keratoconus patient with "K" readings of 46.00 x 52.00 can best be fitted with which lens: a spherical firm lens a soft lens with overglasses a bitoric gas permeable lens with light touch on the cone a bitoric gas permeable lens with heavy touch on the cone Though Petitioner testified his answer was "D," and he defended it at the hearing, his answer on the examination was "A." The Board's correct answer was "C." The prime consideration in this question is the touch of the lens, not the issue of hard or soft, or gas permeability. The most current edition of Mandell's textbook and the majority of optometrists today feel that the best choice of lens for fitting a keratoconus patient is the bitoric gas permeable lens with light touch. The opinion of the "majority of optometrists" referred to by Dr. Chrycy was garnered in discussions with a personal friend who, as a Fellow of the American College of Optometry, had recently attended a meeting of that body where this exact subject was, discussed and that opinion rendered. Petitioner cited an earlier edition of Mandell's work to urge the position that a firm lens is required to contain the protrusion of the dark part of the eye that comes along with keratoconus. Later opinion, however, changes that position which is now no longer considered the better treatment. Petitioner also challenged the "K" readings in the question as being unreliable. Unfortunately by doing so, reasonable asthat might be in the practice of optometry, he read into the question a factor that was neither present nor intended by the examiners. The "1(" readings in this question were agiven quantity. Petitioner's treating them as a "trick" was an unfortunate mistake. It is also pertinent to note that 71 of the 103 examinees (69 percent) chose the correct answer to this question. Question 78 on the examination, the fourth and last one challenged by Petitioner at the hearing, reads: The extraocular muscle most frequently involved in extropia is the medial rectus superior rectus lateral rectus superior oblique Petitioner's answer was "C. lateral rectus." The Board's correct answer was "A. medial rectus." The term "extropia" means a turning outward of the eye. The term "extraocular" means outside the eye. The medial rectus muscle is the muscle between the eye and the nose which pulls toward the center of the face. The lateral rectus muscle is that on the outward part of the eye which pulls toward the ear. In a normal individual, the muscles, of equal strength, balance each other and the eye looks forward unless the person involved moves it. Extropia is caused when there is an imbalance of the muscles, either by a weakening of the medial rectus, which allows the normallateral rectus to overpower it, or by an unnatural strengthening of the lateral rectus which then overpowers the normal medial rectus. By far the greater weight of optometric opinion, based on observation and testing, reveals that the most frequent" cause of this condition is the weakening ofthe medial rectus, leaving the lateral rectus normal. Consequently, the correct answer is not lateral rectus as claimed by Petitioner, but the medial rectus as stated by the Board,notwithstanding even the Board's expert, witness testified there is no definitive authority to support the Board's choice. In this case, 64 percent of the examinees chose the correct answer.
Recommendation Based on the foregoing, it is RECOMMENDED: That a final order be entered finding that Petitioner should be awarded one additional point credit for Question 31 and that he, nonetheless, failed to achieve a passing score on the July, 1982, optometry examination. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983. COPIES FURNISHED: Abraham I. Bateh, Esq. 2124 Park Street Jacksonville, Florida 32204 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Rochep Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner should be given a passing grade for the pharmacology portion of the Optometry Licensure Examination given on August 1999.
Findings Of Fact Jackson took the optometry licensure examination given on August 5-8, 1999. The examination consisted of three parts: clinical, laws and rules, and pharmacology. Jackson failed the pharmacology portion of the examination with a score of 65.70. The minimum passing score for the pharmacology portion is 70. The pharmacology portion is a practical examination that tests the candidate's competency in diagnosing and treating ocular diseases. The pharmacology examination consists of a series of case studies followed by questions of varying point values. Each case study is worth seven points. The questions for each case study require the candidate to correctly identify a differential diagnosis, a second differential diagnosis, and a final diagnosis and to answer two follow-up questions, giving the best answer. Jackson challenged the scores that she received for the answers to questions 86, 31, 33, 85, 7, 9, 80, 111, 113, 66, and 69. Question 86 dealt with a differential diagnosis for a patient who was complaining of tenderness in one eye. An initial scraping and cytology showed some organisms but no hyphae or gram negative cocci. Jackson listed a homograft rejection as the first differential diagnosis. Her answer was incorrect because the case study did not present the characteristics of a homograft rejection and did give indicators of a bacterial infection. The correct answer was "F," and Jackson gave "C" as the answer. Questions 31 and 33 dealt with a case study of a patient who was complaining of some tearing, feeling like something was in her eye when nothing was there, light sensitivity, and redness in her right eye. For question 31, Jackson answered that a differential diagnosis was gonococcal conjunctivitis, which is incorrect because the patient did not have a severe purulent discharge, which is characteristic of gonococcal conjunctivitis. The correct answer for question 31 was "G," and Jackson gave "L" as the answer. Question 33 was for the final diagnosis, and Jackson again answered gonococcal conjunctivitis. The answer was incorrect because of the absence of a severe purulent discharge. The correct answer to question 33 was "A," and Jackson answered "L." Question 85 dealt with a patient who was complaining of decreased vision in one eye. The applicant was asked to pick the next step in the management of care to be taken if the appropriate medical care had been unsuccessful. Jackson incorrectly indicated that the answer was retinal focal laser therapy. Such treatment would be appropriate for a patient who had diabetic macular edema but not for the diagnosis of the patient in question. The correct answer to question 85 was "A," and Jackson answered "H." Questions 7 and 9 dealt with a patient complaining of floaters and decreased vision. Question 7 called for a second differential diagnosis. Jackson answered rheumatoid arthritis, which is incorrect because the patient was experiencing chronic granulomatous uveitis. The correct answer to question 7 is "I," and Jackson answered "E." Question 9 asked the candidate to identify the testing which would be appropriate for the correct final diagnosis. Jackson correctly identified the final diagnosis, but did not correctly identify the appropriate treatment. Jackson's answer gave the appropriate test for rheumatoid arthritis, which was not the final diagnosis. The correct answer was "B," and Jackson answered "G." For question 80, Jackson stated that she bubbled in the wrong answer. She bubbled in "F," and the correct answer was "E." The responsibility for bubbling in the correct answer rests with the candidate; thus, "F" is considered an incorrect answer even if it was bubbled in by mistake. Questions 111 and 113 dealt with a patient complaining of intermittent haloes and blurred vision. Question 111 asked for a differential diagnosis. Jackson answered acute angle closure glaucoma, which is incorrect because the patient did not present the characteristics of acute angle disclosure glaucoma, particularly with an intraocular pressure of 27. The correct answer was "C," and Jackson answered "A." Question 113 asked for the final diagnosis. Again Jackson answered acute angle closure glaucoma, which is incorrect. Questions 66 and 69 dealt with a patient who had a dark shadow which obscured the vision in his right eye six hours before his visit to the doctor. Question 66 asked for a differential diagnosis. Jackson answered traumatic vitreous hemorrhage, which is incorrect because there was no evidence of trauma given in the case study. The correct answer was "F," and Jackson answered "K." Question 69 asked for the immediate treatment or management which would be indicated for the right eye. Jackson answered vitrectomy, which is incorrect because a vitrectomy would not be performed on a hemorrhage which had been present for only six hours. The correct answer is "D," and Jackson answered "F."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Karen Jackson failed to earn a passing score of 70 on the pharmacology portion of the optometrist licensure examination given in August 1999. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 31st day of July, 2000. COPIES FURNISHED: Karen Jackson Post Office Box 7157 West Palm Beach, Florida 33405 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact The Respondent is a licensed medical doctor holding license number MEOO17343 issued by the Florida Board of Medical Examiners. He has a general family practice but also states that he specializes in neurology as well. He is not board certified in any specialty. He has had many years of practical medical experience in Cuba and later in the United States. The Petitioner is an agency of the State of Florida charged with regulating and enforcing licensure and the licensure standards for medical doctors in Florida, and enforcing the practice standards embodied in Chapter 458, Florida Statutes. In October, 1981, the Respondent employed Manuel Farinas to work in his medical office, specifically for the purpose of performing eye examinations and writing prescriptions for eyeglasses. The Respondent had known Manuel Farinas when they were in Cuba and knew that he had experience also in working with contact lenses and fitting contact lenses and eyeglasses. The Respondent was aware that Farinas did not hold a license to practice any of the medical or healing arts in Florida, but was informed by Farinas that he was then studying to take the foreign medical graduate examination which is a prerequisite to licensure. The Respondent set up a separate eye examination room in his medical offices which contained equipment designed specifically to perform eye examinations. Indeed, as established by Petitioner's composite Exhibit 7, Manuel Farinas has not been and is not licensed as a physician or physician's assistant in Florida and holds no license in Florida authorizing practice of medicine in any form. On March 16, 1982, Dorris B. Bruce, an investigator for the Department of Professional Regulation, went to the Respondent's office to obtain an eye examination. Patient Bruce was examined by Mr. Farinas and was diagnosed as having "hypertension retinopathy." The examination of the "patient" consisted of a cornea examination, an examination for conjunctivitis, the patient's lenses were checked, and a fundus examination was performed. The patient was given a prescription for eyeglasses on the Respondent's prescription blank, which bore his printed name. The blank was unsigned and Respondent's testimony itself establishes that the examination of patient Bruce and the rendering of the prescription for eyeglasses was done exclusively by Manuel Farinas, and Respondent did not examine Dorris Bruce nor supervise the medical care provided by Farinas. Robert Wolf, an investigator employed with the Department, made an appointment for an eye examination with the Eyeglass Emporium for June 1, 1982. This is a business establishment and opticinary owned by one Geoffrey Hullman. It is located next door to, and in the same building with, the Respondent's medical office. Upon arriving at the Eyeglass Emporium, Mr. Wolf was directed to the Respondent's adjoining medical office where the "patient" completed a patient information form. Mr. Wolf was then taken by one of Respondent's office assistants to the examining room for the eye examination mentioned above. Shortly thereafter, an office assistant entered the room accompanied by a man who was introduced as the doctor who would perform the eye examination. The "doctor" was actually Manuel Farinas. Notations in the medical record prepared on patient Wolf at the Respondent's office (Exhibit 3 in evidence) establish that the patient had a visual eye examination without glasses and was examined for conjunctivitis and also had cornea, lens and fundus examinations. Farinas examined Mr. Wolf by shining a flashlight type device into his eyes, having him read a wall chart, and by having him look through a lens in a machine that flashed charts on the wall until Farinas got the best subjective reading of visual acuity from the patient. The patient was also given a chart to read. Farinas diagnosed the patient as having a mild case of conjunctivitis and gave him a prescription for eyeglasses and a prescription for Vicollirum. Both prescriptions were written on blanks bearing the Respondent's name and office address. Upon completion of the eye examination, the prescriptions were written by Manuel Farinas for patient Wolf and were placed in a folder and given to the patient. The prescriptions were not signed by either Farinas or the Respondent. At no time during the patient's presence in the Respondent's office, did the Respondent either examine the patient or review and approve the medical prescriptions written for the patient, or supervise the medical examination activities of Farinas. The patient was then directed by Farinas through a door adjoining the Respondent's office to the Eyeglass Emporium to have the prescription for eyeglasses filled. Investigators for the Petitioner then re-entered the Respondent's office at that time and interviewed Farinas who was still in the room where the patient Wolf had been examined. After identifying themselves as investigators for Petitioner, Farinas was asked for identification. He identified himself as Dr. Manuel Farinas and admitted that he had written the prescriptions for patient Wolf. Respondent entered the room at that point and the Petitioner's employees identified themselves as investigators. In the presence of the Respondent, the investigator elicited statements from Farinas that he had examined patient Wolf and that he had written the two prescriptions for that patient as well as eliciting the statement that he was not licensed. The Respondent did not comment on any of those responses by Farinas at that time. Farinas then produced for Petitioner's investigators documents purporting to show that he had received medical training in Cuba. The Petitioner established through expert testimony of Dr. Lawrence T. Reese, who is a board certified opthalmologist, with a sub-specialty in retinal muscular disease, that a medical doctor does not receive the appropriate training in a general M.D. degree course of study to qualify him to either perform a thorough eye examination or to prescribe eye-wear for patients. Dr. Reese practices in Dade County, Florida and is affiliated with Parkway Regional Medical Center and Humana Hospital. He holds a voluntary faculty appointment at the University of Miami School of Medicine in Opthalmology. Dr. Reese is aware of the general standard of instruction in opthalmology in a medical school curriculum for the general M.D. degree granting institutions. This instruction, consists of from three to four hours of instruction, and is basically a laboratory study where the medical students examine each others' eyes. Thus, the general medical student who fails to pursue a specialty in opthalmology, receives only a bare minimum amount of training in patient eyecare and examination. A general or family practitioner would thus only have minimal involvement in the area of eye-care. Dr. Reese is aware of the generally prevailing standard of care of general practitioners in Dade County, Florida. Dr. Reese thus established that the extent of eye-care provided by general practitioners in that medical community is to visually look into the patient's eyes as a part of a general medical examination. This is a cursory eye examination at best. The visual examination consists of looking into the patient's eyes with an opthalomoscope in order to get a view of the optic nerves and surrounding fundus. If such a general practitioner/family practitioner examination shows that the patient's eyes appear to be normal, this is the extent of the visual examination performed. If problems are apparent, the general prevailing standard of practice dictates that the general practitioner or family practitioner refer the patient to a board certified opthalmologist. John Handwerker, M.D., is a licensed medical doctor in the State of Florida who has practiced medicine in Dade County for 33 years. His testimony corroborates that of Dr. Reese. Dr. Handwerker is not aware of any eye-care training provided by medical schools in M.D. degree granting programs. He is aware of the generally accepted prevailing standards of practice of medicine by general and family practitioners in Dade County and established that a family practitioner would not typically perform a refraction of the eyes for the purpose of prescribing eyeglasses. That standard would be the same for a general practitioner even if he has a sub-specialty in neurology, which is not a relevant sub-specialty to questions of eye-care. This type of practitioner would not have either the training or experience to perform such an examination. As established by both of these expert witnesses, a person who takes a patient's history, makes an examination of the patient's eyes and prescribes either medication or an optical lens or both, is engaged in the practice of medicine. Both medical experts established that if a licensed medical doctor authorizes an unlicensed person to take the medical history of a patient, perform the eye examination and write prescriptions for medication, or for optical lenses for that patient, and the extent of the licensee's participation in the process is either to merely sign the prescription or at most to review the patient's medical records, then that licensed medical doctor is not properly supervising an unlicensed person and is permitting an unlicensed person to practice medicine. As established by Dr. Reese, a thorough eye examination would consist of determining if the patient has a family history of eye disease, determining whether the patient is experiencing any particular visual problem, determining the refractive state of the patient's eyes (that is, visual acuity), and would include a check of various eye systems of the patient, such as the pupils and their reaction to light as well as the ocular motor system for eye movement (musculature). Additionally, a properly examined patient, should be checked for visual defects, have a slit lamp examination to determine the medical condition of the eyes (which consists of examining the upper and lower parts of the pupils under the eyelids), the patient's cornea should be checked for material in the eye fluid and in most instances a dilated examination of the pupil should be done to diagnose its condition. When all of these examinations and checks are performed the doctor can then reach a cogent conclusion concerning the overall health of the patient's eyes and make appropriate recommendations concerning care and treatment. A medical diagnosis that a patient's fundus is normal, cornea is normal and the lens is normal can only be made if the patient's eyes have been dilated. The fundus can be examined without dilating the patient's eyes, although dilation would give increased ability to examine it. Dilation of a patient's eyes is effected by the use of a prescription drug by medical practitioners who are experienced and who practice in the area of eye examinations and eye-care. Both patients Bruce and Wolf were diagnosed by Farinas as having normal fundus, cornea and lenses. But this diagnosis was made without a thorough eye examination because Farinas did not dilate their eyes to adequately check these systems. Although it is true that ready-made eyeglasses can be purchased at commercial department stores with or without a prescription, where a patient has visited a medical doctor's office and had his eyes examined and is given a written prescription for glasses, the patient then believes that he has received a proper, competent medical eye examination and is being prescribed glasses for valid medical reasons. Where an inadequately trained or unlicensed person performs visual examinations and writes medical prescriptions for glasses, a patient is being deceived or at least potentially deceived as to the correct assessment of the condition of his eyes. The testimony of the Respondent himself as well as Mr. Hullman, the operator of the Eyeglass Emporium, establishes that Farinas was known and referred to as "Dr. Farinas" during the time he was employed in Respondent's office. Farinas was introduced to Mr. Wolf as "Dr. Farinas" at a time when he was not (and still is not) licensed in Florida. Both Drs. Reese and Handwerker opined that where a general practitioner with a specialty in neurology permits an unlicensed person to conduct medical examinations and write medical prescriptions for eyeglasses or for medicinal drugs, and the extent of the licensee's contact with the patient is to sign prescriptions or review the patient's medical records, the licensee has failed to conform to generally accepted and prevailing standards of care recognized by reasonably prudent similar physicians under similar conditions and circumstances. The Respondent is not board certified in opthalmology and has had no residency training or other formal training in opthalmology outside the minimal general training described above, received in the course of preparing for his M.D. degree. The Respondent maintained that he has extensive experience performing medical visual examinations, but this testimony is not deemed credible because, as revealed by Petitioner's Exhibit 8 in evidence, during the informal proceeding before the Board where Respondent was also testifying under oath, he acknowledged that he had not performed medical visual examinations or refractions and had not written a medical prescription for eyeglasses in over 13 years, thus, his testimony that he has had extensive experience in performing medical visual examinations recently and during the period under consideration in the Administrative Complaint is not deemed credible. Although Respondent contends that he supervised the practice of Farinas, his testimony conflicts with competent evidence indicating otherwise. The supervision consisted of the Respondent allegedly reviewing the patient's records and signing prescriptions for eyeglasses or drugs written by Farinas. Although expert testimony has established that this does not constitute adequate supervision by a licensed medical doctor, in the case of both patients involved in this proceeding the eyeglass prescriptions were actually never signed. Although use of unsigned prescriptions is not necessarily illegal, it shows that Farinas was not supervised to any significant extent at all in his examination, care and treatment of patients who presented themselves to the Respondent's office for an eye examination. When patient Wolf was in the Respondent's office he was never examined by Respondent, nor was his prescription given him by Farinas ever reviewed by the Respondent, nor did the Respondent review his medical history, which he had provided in writing on a form provided by Respondent's office. Additionally, as established by witness Hullman, that witness returned unsigned prescriptions to the Respondent's office for the Respondent to sign after the prescriptions had already been filled by the opticianry and after the investigation into this matter had commenced. The Respondent signed the previously unsigned prescriptions and returned them to Hullman and thus it is established that at the time the prescriptions were executed and filled, the Respondent did not supervise the prescribing by Farinas nor the examinations to which the prescriptions related, both as to prescriptions of eyeglasses or drugs. Finally, it should be pointed out that Respondent was aware in April of 1982 that his use of Farinas in performing visual examinations and prescriptions as to eye-care patients was improper because of the visit to his office by Investigator Dorris Bruce. Two months later, however, patient Wolf went to the Respondent's office for an eye examination and was also examined by Farinas and tendered prescriptions by Farinas with no signature, supervision or other review of the procedure performed or prescriptions given by the Respondent. This was some nine months after Farinas first became employed in these capacities at the Respondent's office.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered finding the Respondent, Orlando C. Ramos, M.D., guilty, as charged in the Amended Administrative Complaint, of violations of Section 458.331(1)(g), Florida Statutes (1981); Section 453.331(1)(w), Florida Statutes, (1981), as well as a violation of Section 458.331(1)(t), Florida Statutes (1981), and that a fine of $2,000 be imposed and the Respondent's license to practice medicine be suspended for a period of three months. It is further recommended that the Respondent's licensure status be probationary for a one year period commencing at the conclusion of the three month's suspension, during which such probationary period his medical practice should be monitored by the Petitioner to ensure that such violations of the Medical Practice Act do not recur. DONE and ENTERED this 21st day of November, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1984.
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 The issues in this case are framed by the parties' Joint Pre-Hearing Stipulation. Essentially, they are whether, in connection with his care and treatment of two patients, R.B., and D.T., the Respondent, who is an opthalmologist, violated Section 458.331(1)(t) and (m), Fla. Stat. (1993), by: gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; or (m) failure to keep written medical records justifying the course of treatment of the patients.
Findings Of Fact The Respondent, Carlos A. Solorzano, M.D., is licensed to practice medicine in Florida. He holds license ME 0041368. The Respondent practices in the field of opthalmology. He is not Board-certified. Patient R.B. The patient, R.B., a 92 year-old female, was referred to the Respondent and was seen for the first time on February 2, 1988. The Respondent diagnosed chronic uveitis (inflammation) in both eyes, secondary cataracts in both eyes, and secondary glaucoma in the right eye. The Respondent prescribed two medications (inflamase and atropine). When R.B. was next seen by the Respondent on February 11, 1988, the Respondent prescribed a third medication (betagan) and recommended a YAG laser iridotomy on the right eye to relieve high pressure. In performing an iridotomy, the opthalmologist bores a hole in the iris to relieve abnormal pressure in the eye (glaucoma). Sometimes, especially when glaucoma is caused by active uveitis, a patient can be treated effectively by controlling the inflammation solely with medication and later dilating the pupil. If successful, medical treatment obviates the need for surgery. In the case of R.B., medical treatment was not and would not be successful. As a result of chronic uveitis, R.B. had a history of abnormally high pressures in the eye. In addition, and of even more concern, the pressures were subject to "spiking" seriously high pressures. Whereas pressures of 21 mm of Mercury (Hg) are considered high normal, R.B. had readings of 38 mm Hg in both eyes on January, 24, 1988. On her first visit to the Respondent on February 2, 1988, the readings were 30 mm Hg in the right eye and 20 mm Hg in the left eye. On her second visit to the Respondent on February 11, 1988, the readings were 29 mm Hg in the right eye and 19 mm Hg in the left eye. Clearly, the Respondent's recommendation that R.B. have an iridotomy performed on her right eye was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's records indicate that, instead of an iridotomy, the Respondent performed an iridoplasty on R.B. on March 23, 1988. In an iridoplasty, the opthalmologist treats the surface of the iris with laser energy to cause some shrinkage and change of shape in the iris but does not bore a hole through the full thickness of the iris. The Respondent's medical records do not explain why an iridoplasty was performed on March 23, 1988, instead of the recommended iridotomy. The Respondent has no independent recollection of which procedure he performed and can only speculate that, if in iridoplasty was performed, perhaps it was because he was unable to complete the iridotomy and did an iridoplasty instead in preparation for a subsequent iridotomy. In that respect, the Respondent's written medical records were insufficient to justify the course of treatment of the patient. On March 28, 1988, the Respondent saw R.B. again and recommended an iridotomy on the left eye. The patient's left eye pressure reading on that day was 14 mm Hg, well within normal range. Other left eye pressure readings also were within normal range, although closer to high normal: 20 mm Hg on February 2, 1988; and 19 mm Hg on February 11, 1988. But there also was the history of a 38 mm Hg "spike" on January 24, 1988, and the history of abnormally high pressures in the patient's right eye. Despite the normal readings for the left eye, taking all of the pertinent factors into consideration, it was not proven that the Respondent's recommendation of an iridotomy for the left eye was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (A subsequent "spike" 76 mm Hg in April, 1990, further validated the recommendation.) The Respondent performed an iridotomy on R.B.'s left eye on April 20, 1988. The Respondent's medical records do not reflect the absence of cells or flares until an entry on June 6, 1988. The Respondent does not always record what he considers to be "negative findings." "Negative findings" should sometimes be recorded if they are pertinent and necessary, but these "negative findings" are subsumed in the diagnosis of chronic, rather than active, uveitis. Patients undergoing an iridotomy procedure should be seen for follow- up care within one to three days to ensure that the opening is patent, that the symptoms are relieved, and that no secondary inflammation is present. As indicated, the Respondent saw the patient, R.B., on March 28 and on April 25, 1988. The Respondent's records for those visits indicate intraocular pressures, but otherwise the Respondent's written medical records for any follow-up care on those dates were insufficient. (The March 28, 1988, records indicate an evaluation and recommendation for a iridotomies for both eyes but do not address the March 23, 1988, procedure on the right eye. The April 25, 1988, records do not address the April 20, 1988, procedure on the left eye.) The records for both of those visits indicate prescriptions for atropine, betagan, and inflamase. The next visit indicated in the Respondent's records for R.B. was June 6, 1988. At that time, the Respondent recommended a lensectomy and vitrectomy for the left eye, which he performed on August 30, 1988. A lensectomy is the removal of the lens. A lensectomy is indicated under several different circumstances. It is appropriate when a less involved cataract procedure cannot be performed, or when the anterior approach to removing a cataract cannot be utilized. A vitrectomy is the removal of the vitreous, the jelly-like material in the globe of the eye. A vitrectomy also is indicated under various different circumstances, including: biopsy; infection; blood in the eye; inflammation; and retinal repair. In the case of the patient, R.B., there was no improvement in the patient's vision (hand movement, only, in the left eye), despite the use of a strong corticosteroid, a beta blocker, and a strong pupil dilator. The patient continued to suffer from the effects of chronic uveitis. Synequies, or adhesions, continued to prevent fluid from escaping. The patient also had thick cataracts and membranes in the vitreous that were obscuring vision. Under these facts, it was not proven that the lensectomy and vitrectomy on the left eye were below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The lensectomy and vitrectomy were safer than ordinary cataract surgery in this patient and safer than not doing anything. But the Respondent's written medical records were insufficient to justify the course of treatment of the patient. They did not adequately explain the reasons for the Respondent's recommendations. Patient D.T. The patient, D.T., was referred to the Respondent for evaluation regarding a detached retina at the seven o'clock position in the right eye. On September 28, 1988, the Respondent performed a procedure known as cryopexy to reattach the patient's retina. In cryopexy, the opthalmologist applies liquid nitrogen to the area of detachment. The low temperature of the liquid nitrogen (minus 60o centigrade) causes inflammation and scarring. The scarring reattaches the retina. It was the Respondent's responsibility to check the pressure in the liquid nitrogen tank supplied by the hospital facility the Respondent was using. He failed to check the pressure and, unfortunately, it was low. The Respondent attempted the procedure despite the low pressure in the liquid nitrogen tank but was not sure if it would be effective. The Respondent wanted to proceed with a follow-up procedure using a laser to be sure the reattachment succeeded, but the patient declined. In part in order to further facilitate reattachment pending the laser procedure, the Respondent injected air into the eye to serve as an internal tamponade to put pressure on the point of reattachment to hold it in place. (Other reasons for injecting air in the eye were to maintain proper intraocular pressure and to keep fluid away from the point of reattachment for access and visibility during the subsequent laser procedure.) Unfortunately, due to gravity and the inferior position of the retinal detachment, the internal tamponade only would be effective if the patient maintained a face-down position. On follow-up the next day, the patient was maintaining proper position and the laser procedure was scheduled for the following day. But on preop evaluation on September 30, 1988, the patient was found to be in sitting position, and it was not possible to perform the laser procedure. Instead, the Respondent recommended redoing the operation. The patient declined, preferring to "wait a few days." During follow-up evaluation on October 4, 1988, it was determined that the cryopexy had been at least partially successful after all, despite the low liquid nitrogen pressure. Pigment 1+ was seen, indicating inflammation and scarring, and the area of detachment of the retina appeared to be smaller. The macula remained attached. During another evaluation October 7, 1988, it was noted that the macula still remained attached. Although the Respondent urged the patient, D.T., to have the cryopexy procedure on the right eye repeated more quickly, the patient wanted to wait, and the Respondent repeated the procedure on October 14, 1988. It was not proven that the delay in repeating the procedure was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The initial procedure apparently was at least partially successful, and the macula remained attached. In addition, inferior retinal detachments usually do not extend quickly, and it was not proven that there was any urgency in repeating the procedure. The Respondent's medical records do not include any indication that he advised or encouraged the patient not to wait until October 14, 1988, to have the cryopexy procedure repeated, but it was not proven that this omission was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent testified that he saw the patient at her home on several occasions but his medical records make no mention of any such visits. It became apparent from participating in the final hearing (and can be surmised to some extent from the Respondent's "proposed findings of fact") that the Respondent's biggest difficulty in the practice of medicine may be the difficulty he has in communicating (at least in English). It is possible that patients and other physicians perceive incompetence when they do not understand what the Respondent is telling them, whether orally or in writing. His difficulty with written English may contribute to the inadequacy of some of his medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent guilty of violating Section 458.331(1)(m), but not (t), Fla. Stat. (1993); (2) reprimanding him; and (3) imposing a $1,000 administrative fine. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5118 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-20. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted. Subordinate to facts found. (The diagnosis was chronic, not active, uveitis.) Rejected as not proven. (Cells and flares indicate active uveitis.) Accepted. Subordinate to facts found. See 21., above. 24.-26. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to intraocular pressure. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 29.-32. Accepted and incorporated to the extent not subordinate or unnecessary. 33.-35. Accepted and incorporated. 36.-37. Accepted and incorporated. However, there also are other indications. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to "indications"; accepted and incorporated as to "discussion." Accepted and incorporated. Accepted and incorporated as to inadequate medical records; otherwise, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. 42.-44. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. (It was at least partially successful and may have been completely successful, but the Respondent was unsure due to the low pressure and wanted to repeat the procedure to make sure.) Accepted. Subordinate to facts found. (The medical records were written before subsequent follow-up evaluation showed successful cryopexy.) 47.-48. Accepted and incorporated. (As to 48., there also were other reasons for it.) Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that it was "necessary due to insufficient freezing." (The Respondent thought it was appropriate due to questions he had about the efficacy of the cryopexy and for other reasons.) Accepted but subordinate and unnecessary. (The Respondent did not perform a pneumatic retinopexy.) Rejected as not proven that it would not be "viable." Accepted that it was not appropriate, but subordinate and unnecessary. See 50., above. Also, rejected as not proven that "the patient could not be positioned to cause the desired effect." Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that "the Respondent was advised." (The Respondent made the determination.) Otherwise, accepted and incorporated. 53.-54. Accepted and incorporated. Accepted but subordinate and unnecessary. Rejected as as not proven and as contrary to facts found and to the greater weight of the evidence. 57.-58. Accepted and incorporated. Accepted but subordinate and unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. See 45., above. 61.-65. Accepted but subordinate and unnecessary. 66.-67. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Respondent's Proposed Findings of Fact. (The Respondent's "proposed findings of fact" were presented in an unorthodox fashion that makes ruling difficult. He introduced a subject on a sheet of paper, sometimes commented on the subject, and attached copies of medical records in evidence that relate to the subject. These rulings are restricted to the Respondent's comments and attempt to follow the format chosen by the Respondent. No rulings are made on the attached copies of medical records as they are accepted but subordinate.) FACTS RELATED TO PATIENT #1, RB LASER PROCEDURES. Accepted and incorporated to the extent not subordinate or unnecessary. REGARDING HIGH INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) REGARDING A VERY HIGH SECOND EPISODE OF INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) POINT REGARDING THE APPOINTMENTS. As to R.B., accepted but subordinate and unnecessary. As to the other patients, rejected as not supported by any evidence. PATIENT RB DIDN'T HAVE ACTIVE UVEITIS . . .. First sentence, accepted and incorporated. Second sentence (regarding slit lamp), accepted but subordinate and unnecessary. (AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) THE SURGICAL PROCEDURE LENSECTOMY VITRECTOMIE [sic]. Generally accepted and incorporated to the extent not subordinate or unnecessary. REGARDING SLIT LAMP EXAMINATIONS. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) FACTS RELATED [TO] PATIENT #2, DT PAGE# 5. Accepted and incorporated. PAGE# 6. Accepted and incorporated. PAGE# 7. Accepted (assuming "denied to" means "refused to") but largely subordinate and unnecessary. Only "home visits" comments are incorporated. PAGE# 8. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the allegation that the proliferative vitreous retinopathy occurred between the two surgeries.) PAGE# 9. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 10. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 11. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that, after the second surgery, the Respondent did not advise the patient concerning alternatives such as pars plana vitrectomies.) PAGE# 12. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent went on vacation in October, 1988.) COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre - Legal A Tallahassee, Florida 32399-0792 Carlos A. Solorzano, M.D., pro se 7211 North Dale Mabry Highway, #101 Tampa, Florida 33614 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact At all times material hereto, Respondent was a licensed medical doctor in the State of Florida having been issued License No. 0020340. Respondent specializes in the practice of ophthalmology, and is board-certified in that specialty. As indicated above, Respondent has been charged in a three-count complaint with various violations concerning his treatment of three patients. For purposes of clarity, the Findings of Fact section of this Recommended Order will, therefore, treat each such patient separately. ETTA ROSE Respondent first saw Etta Rose as a patient on March 17, 1980. At that time Ms. Rose gave a history of having had "floaters" in both eyes, in her left eye for three months and in her right eye for approximately the past three years. She also indicated a history of hypertension of five years duration. On her initial visit, Ms. Rose informed Respondent that she had last had an eye examination in December of 1978, but could not recall the name of the examining doctor. Upon physical examination on the initial visit of March 17, Respondent determined that the patient had intraocular pressures of 25 in her right eye and 26 in her left eye. In this connection, intraocular pressures of from 12 to 21 are considered roughly normal in a general patient population, and any readings above those levels are generally considered to be elevated. In addition to the above-noted intraocular pressures, Respondent also determined-on this initial visit that the patient had asymmetric nerve heads, the nerve heads in her left eye being markedly larger than those in the right. This degree of difference, according to Respondent's determination, could not be attributed to a congenital defect. Since this degree of differential in the size of the optic nerve heads occurs in less than one percent of the population, this fact, taken together with the patient's elevated intraocular pressures, resulted in Respondent's diagnosis of probable glaucoma. As a result of Respondent's physical findings as outlined above, together with the lack of information from prior treating physicians, Respondent determined that in order to avoid potentially irreversible damage to the patient's eyes, he needed to administer as high a dosage of medication to bring down the patient's intraocular pressures as rapidly as possible. Accordingly, on March 17, 1980, Respondent prescribed a one percent solution of pilocarpine to be administered to the patient's eyes every four hours. Pilocarpine is an old conservative glaucoma medication used specifically to reduce intraocular pressures. A one percent pilocarpine solution' is a relatively light dosage. Therefore, on March 20, 1980, Respondent increased the dosage of pilocarpine to two percent every four hours, and on March 24, 1980, again increased the dosage of pilocarpine to four percent every four hours. Additionally, on March 28, 1980, Respondent added the drug timolol to his attempted medical management of the patient's pressures. It is not medically advisable to start a patient directly on a four percent pilocarpine solution because of the distinct danger of side effects, such as headaches and dimness of vision. As a result, Respondent utilized a process known as "titrating," by starting the patient on a lowered dosage of medication, and rapidly bringing the patient to a maximum dosage, watching carefully during this period for evidence of side effects. The patient in this case apparently experienced no such ill side effects. During his second office visit with the patient on March 20, 1980, Respondent performed a gonioscopy to evaluate the angle where the patient's cornea touched near the iris. This procedure showed the patient to have wide open angles and no scarring. Respondent therefore concluded that the patient suffered from chronic open-angle glaucoma, which was consistent with his initial diagnosis on the first visit of March 17, 1980. On March 20, 1980, the patient's intraocular pressures were 21 in the right eye and 23 in the left eye. During the entire course of his treatment of this patient, Respondent saw the patient in his office on the following dates: March 17, 20, 24, and 28, 1980; April 3, 8, and 22, 1980; May 20, 1980; and June 24, 26, and 27, 1980. Because of the asymmetry in the patient's optic nerve heads, her elevated pressures, and her lack of medical history to demonstrate the progress, if any, of glaucoma, Respondent determined it to be necessary to develop as accurate a profile on the patient as quickly as possible. The purpose of these office visits, which occurred at different times during the day, was to approximate a "diurnal curve." A diurnal curve is a method for determining fluctuating intraocular pressures of a patient, and is customarily obtained by admitting the patient to a hospital, and checking pressures in the patient's eyes approximately every two hours over a 24-hour period. The purpose of the procedure is to obtain an accurate 24-hour reading of the patient's pressures, since pressures within the eye can fluctuate markedly during different times of the day. Respondent determined admitting Ms. Rose to the hospital to be impractical, and set upon a course of seeing her in his office on several rather closely spaced days at different times of the day in order to get a more accurate understanding of her condition. By the time Respondent last saw the patient in his office on June 26, 1980, the patient was on a four percent pilocarpine solution four times a day, .5 percent timolol, and diomox b.i.d., and her pressure in her left eye still remained 26. At that time Respondent determined that he had the option of continuing to carry the patient on these dosages of medication, in which case he determined that the patient would probably go on to progressive damage, or, alternatively, surgical intervention. Respondent determined this amount of medication to have maximized medical therapy and, as a result, recommended a trabeculectomy to attempt to lower the patient's pressures. This surgical recommendation was made on June 27, 1980, at which time Respondent invited the patient to seek a second opinion, recommending that she consult ophthalmologists at the Bascom Palmer Eye Institute at the University of Miami Medical School. The patient sought such an opinion, and elected not to undergo the surgery recommended by Respondent. As a result, the office visit of June 27, 1980, was the last time Respondent saw Etta Rose as a patient. Respondent's diagnosis of the patient at the last visit was chronic open-angle glaucoma that was uncontrollable on medical therapy. The patient was apparently seen by an ophithalmologist on May 15, 1981, and again in January of 1982. The physician who last examined the patient determined that the patient, although she had slightly elevated intraocular pressures, "probably" did not have glaucoma, but should be followed as a "glaucoma suspect" because of the difference in the size of her optic nerves. The record in this cause establishes that there are three parameters generally accepted for diagnosing glaucoma: intraocular pressures; visual fields; and the appearance of the optic nerve. As previously indicated pressures above 21 are generally considered elevated. Throughout Respondent's treatment of Ms. Rose it appears that her intraocular pressures were at all times elevated, and that the optic nerve heads in her left eye were markedly larger than those in her right eye. The record also demonstrates that she evidenced no visual field loss while being treated by Respondent or thereafter. A trabeculectomy is a surgical procedure used in the treatment of glaucoma as a last resort when all other treatment modalities have been exhausted. There is some degree of danger inherent in the procedure, and it is associated with a high failure and complication rate, and can lead to the formation of cataracts. As indicated above, Respondent is charged in the Administrative Complaint with requiring Ms. Rose to come to his office an excessive number of times, with prescribing excessive medication for her condition, and with recommending unnecessary surgery. With respect to the charge of requiring excessive office visits, it is specifically concluded that Respondent exercised that level of care, skill, and treatment which was reasonable under the circumstances given the fact that the patient had elevated intraocular pressures, asymmetric optic nerve heads, and was unable to furnish Respondent with a history that would justify less aggressive treatment than the methods employed by Respondent. Because of these factors, Respondent reasonably determined that the patient should be seen often during the initial stages of therapy particularly in order to evaluate fluctuations in the patient's intraocular pressures. At final hearing, Petitioner adduced credible testimony from two board-certified ophthalmologists that Respondent prescribed excessive medication to Ms. Rose over his period of treatment of that patient. Specifically, these physicians took exception to Respondent's increasing the dosages of pilocarpine from one percent to a four percent solution over an approximately 11-day period. These physicians felt the better practice would have been to proceed more slowly to determine how the patient's pressures were reacting to medication. Equally credible, however, was testimony from the Respondent himself and from another board-certified ophthalmologist that the procedure known as "titrating" whereby the patient is started on a lower dosage and worked to a higher dosage over a short span of time was also reasonable medical treatment under the circumstances. The patient was seen frequently so that any side effects from this increase in medication could be monitored by Respondent. In addition, because of the high degree of difference in the size of the optic nerve heads in the patient's two eyes, Respondent reasonably assumed that glaucoma, if it were present, had progressed to such an extent that it was necessary to get the patient's intraocular pressures under control as rapidly as possible. Respondent reasoned that, should the pressures be brought under control at a higher level of medication, the medication could always be cut back, whereas, if he proceeded more slowly irreversible damage might occur in the interim. This record simply reflects that reasonable ophthalmologists might disagree with respect to the proper administration of medication in this context and, as a result, it cannot be determined from this record that Respondent acted unreasonably in his course of prescribing medications to Etta Rose. Finally, Petitioner adduced credible testimony at final hearing that the trabeculectomy recommended by Respondent was improper because Respondent had not reached maximum medical management of the patients condition in that he had not utilized oral diuretics or epinephrine as treatment modalities. The reasoning here is that until maximum medical management proves unsuccessful in controlling a patient's pressures, a remedy as drastic as a trabeculectomy should not be utilized. Petitioner's witnesses testified that based on the patient's marginally elevated pressures and the fact that she demonstrated no visual field loss, surgical intervention was improper. Again, equally credible testimony from both the Respondent and another board-certified ophthalmologist called as a witness by Respondent establishes that an equally reasonable interpretation of the data available to Respondent was that the patient was, indeed, under maximum medical management, and her intraocular pressures had not responded appropriately to this treatment regime. Further, the record also establishes that it is very unusual to find the degree of difference in the size of the optic nerve heads in this patient without visual field loss. Patients who demonstrate this size differential without visual field loss often do not develop visual field loss until relatively late in the progress of the disease, but when that loss occurs it occurs abruptly and profoundly. Thus, it appears that the risk of performing a trabeculectomy had to be weighed against the danger of irreversible damage from the progress of glaucoma. Under these circumstances, it was reasonable for Respondent to recommend surgery. It should be noted also that at the time Respondent recommended the surgical procedure, he also advised the patient that she was free to seek a second opinion. In addition, Respondent also adduced credible testimony that based on the drugs which he had prescribed medical management of this patient's condition would not have been furthered by adding epinephrine to his course of treatment. Accordingly, the facts of record in this cause do not establish that Respondent caused Etta Rose to visit his office an excessive number of times, that he prescribed excessive medication for his treatment of that patient, or that unnecessary surgery was recommended by Respondent. ALBERT MILLER Respondent first saw Albert Miller as a patient on September 29, 1976. Upon physical examination of the patient, Respondent had no reason to suspect the presence of glaucoma. The patient was next seen on March 16, 1977, for a check of his retina because of his history of diabetes. In addition to diabetes, the patient also had a history of hypertension. There were no changes in the patient's condition on the March 16, 1977, visit, and Respondent instituted no treatment. The patient was next seen for an annual check on May 22, 1978. The patient's vision with his glasses had worsened in both eyes at that time. The patient's history indicates that the patient's diabetes had been high just two months prior to this examination. The diabetes had apparently also affected the patient's intraocular pressures because they were found to be 20 in both eyes on this examination, whereas they had been 17 in the right eye and 16 in the left eye on September 29, 1976, when the patient was first seen by Respondent. Respondent chose not to institute active treatment of the patient after the May 22, 1978, visit. The patient was next seen on July 17, 1979. At that time his pressures were still 20 in both eyes and Respondent noted some slight increase in cataract formation and the presence of retinal hemorrhages in the patient's right eye, indicating some diabetic retinal changes that could make the patient's eyes more susceptible to disease. The patient was next seen on July 15, 1980, at which time his intraocular pressures were measured to be 26 in the right eye and 24 in the left eye. Although there is a notation in Respondent's record that the patient was "squeezing," which can artificially elevate pressures, the Respondent testified without contradiction that the "squeezing" noted in his records did not affect the accuracy of these recorded pressures. As of the July 15, 1980, office visit, Respondent diagnosed the patient as a "glaucoma suspect," which is someone who, because of existing physical factors, runs a substantial chance of developing future glaucoma. As a result of this diagnosis, the Respondent scheduled the patient for visual fields on July 17, 1980, and a gonioscopy on July 18, 1980. Visual fields performed by Respondent showed visual field defects which were suggestive of actual visual field loss on threshold stimulus testing. As a result the Respondent concluded that the patient might already have had early visual field loss, and started the patient on a one percent pilocarpine solution in both eyes, every four hours. The patient was next seen on July 22, 1980, at which time his pressures were measured to be 22 in the right eye and 20 in the left eye at 1:35 p.m. The patient was next seen on July 25, 1980, at which time his pressures were 24 in the right eye and 18 in the left eye. Respondent did not feel that a pressure of 24 in the right eye was adequate medical control, so he increased the patient's medication to two percent pilocarpine solution, and scheduled the patient to return on July 29, 1980. The July 25, 1980, pressure readings were conducted at 8:55 a.m., so the patient was scheduled to return in the early afternoon on July 29, 1980, in order to obtain pressure readings at a different time of day. On that occasion, the patient's pressures were 20 in the right eye and 22 in the left eye, which Respondent still determined not to be adequate medical management. Accordingly, Respondent increased the dosage of pilocarpine to a four percent solution. The patient was next seen on August 1, 1980, at which time his pressures were 21 in the right eye and 22 in the left eye. Respondent concluded the reading of 22 in the left eye, in light of possible visual field defects, was not adequate medical management, so he added 0.25 percent timolol to the four percent pilocarpine prescription. The effect of timolol is usually observable within 48 hours. The patient was next seen on August 5, 1980, at which time his pressures were 17 in the right eye and 18 in the left eye. Respondent was pleased with the lowering of the patient's pressures, and scheduled the patient to return on August 11, 1980. At that time the patient's pressure was 20 in both eyes. Respondent was pleased with these results, and felt that he did not need to see the patient again for a two-week period. The patient never returned. The last time the patient was seen by Respondent on August 11, 1980, the Respondent's diagnosis was "glaucoma suspect," although Respondent felt that he needed to follow the patient longer to monitor his visual fields and optic nerve heads. However, with the patient's history of diabetes, myopia, hypertension, and Respondent's determination that he showed early visual field changes, Respondent felt confident with his final diagnosis of "glaucoma suspect." The patient was subsequently examined by another ophthalmologist in the Fort Lauderdale area on August 28, 1980. At that time the patient's pressures were 19 in the right eye and 20 in the left eye. The patient was given a complete examination, which showed presence of dot and blot hemorrhages throughout the entire retina of both eyes, which was to be expected of a patient who was diabetic for the past 15 years, and had been taking insulin for that condition for the past eight years. The patient's optic nerves were normal, and the patient's cup to disc ratio was also normal. Because the patient's optic nerves were normal, he was taken off the pilocarpine which had been prescribed for him by the Respondent. A visual field test was also administered to the patient to determine the presence of any visual field loss secondary to glaucoma, but that test indicated normal vision. The normal cup to disc ratio found by the subsequent treating physician in examining the patient has remained stable throughout his entire course of treating the patient. The patient was last seen by the subsequent treating physician on May 25, 1982, at which time he had intraocular pressures of 16 in the right eye and 18 in the left eye without medication. Another visual field test was performed on that date, which again disclosed normal vision. The subsequent treating physician, like Respondent, diagnosed the patient to be a potential "glaucoma suspect." In the Administrative Complaint, Respondent is charged with requiring Mr. Miller to make an excessive and unnecessary number of office visits. The Respondent is also charged with failing to maintain records revealing the frequency of use of the pilocarpine prescribed for Mr. Miller, and further with failing to maintain records indicating the percentage dosage of timolol and the date of beginning of use of that drug. With respect to the latter charge, the record contains no facts to substantiate those allegations and, in fact, contains evidence that Respondent clearly noted in his records the information charged as lacking in the Administrative Complaint. The Administrative Complaint also charges Respondent with having required the patient to visit his office a total of ten times between July 17, 1980, and August 11, 1980, which is alleged to be ". . . an excessive an[sic] unnecessary number of office visits." The record in this cause establishes that the patient visited Respondent's office a total of eight times during that period. As indicated above, the patient had been seen by Respondent over a period of approximately four years before there was ever any indication of even marginally elevated pressures. Given the patient's history of diabetes and hypertension Respondent, in the exercise of his clinical judgment, determined to treat the condition with medication. Although the record in this cause contains credible testimony that some physicians would not have treated the condition at all, or would have seen the patient at most once a week, equally credible evidence contained in this record establishes that once the decision to treat was made and the patient was started on medication, it was entirely proper to monitor the patient closely to determine the effect that the medication was having on the patient's pressures. It should be noted that the Respondent is not charged in the Administrative Complaint with prescribing excessive or unnecessary medication. Based upon the foregoing, it is therefore concluded that there is an insufficient factual basis in the record in this proceeding to establish that, under the conditions present here, the Respondent departed from reasonable medical practice in seeing the' patient on eight occasions during approximately a one-month period. ELEANOR DRAGER This patient was first seen by Respondent on January 7, 1980. At that time the patient gave a history of having had her vision go blurry for 15 to 20 minutes on two occasions since the beginning of the year. An examination of the patient's eyes showed her vision to be 20/29 in her right eye and 20/100 in her left eye. Intraocular pressures were 30 in her right eye and 28 in the left eye, both of which are considered to be quite high. The patient's last eye examination had been in October of 1978. The patient was next seen on January 9, 1980, at which time Respondent determined it necessary to perform cataract surgery and to implant an intraocular lens. The surgery was performed on January 30, 1980, and, in addition to removing a cataract and implanting a lens, Respondent performed a posterior sclerotomy, a procedure performed by making a tiny hole in the eye wall and inserting a needle to aspirate vitreous fluid, thereby allowing the remaining vitreous to resume a normal position. The patient was seen postoperatively on February 1, 1980, and again on February 7, 1900. Respondent's practice is to visit frequently with postoperative patients in order to closely monitor the patient's condition. On the February 7, 1980, examination, the patient's vision was 20/70 in her left eye, which Respondent considered excellent for one week postsurgery. The pressure in the eye was 20 and there were no other changes of note. The patient was next seen on February 13, 1980, at which time her vision was only 20/200 in her left eye. The only other finding of note on this date was that the lens implant had shifted to a position closer to the cornea. The patient was next seen on March 13, 1980, at which time her vision was still 20/290 in the left eye, and her pressures were 22 in the right eye and 44 in the left eye. Respondent improved the patient's vision to 20/60 in her left eye with a lens change in her glasses. The patient was next seen on March 25, 1980, in response to a call from the patient indicating that on the previous day she had experienced foggy vision in her left eye, and within an hour could see nothing at all out of the eye., The patient had treated the problem herself with eye drops and, within a couple of hours, her vision had improved. Upon examination, Respondent discovered the patient's vision to be 20/200 in the left eye, with a pressure of Respondent restored the patient's vision to 20/25 with a glasses change, leading him to suspect, in view of the patient's recent surgery, that there was a possibility of retinal detachment or retinal tear with possible vitreous hemorrhage. Respondent was unable to see the entirety of the back of the Patient's eye in order to determine the presence of a retinal tear because a view of certain portions of the eye was blocked by the intraocular lens implant. The patient was next seen on March 31, 1980, complaining of "haze" over her left eye. The patient's vision has worsened to 20/40 in her left eye, and her intraocular pressures were 26 in both eyes. The Respondent again changed the lenses in the patient's glasses, restoring her vision to 20/25 in the left eye. The patient was next seen on April 14, 1980, still complaining of the "haze" over her left eye and an additional complaint of many black dots in the left eye since her last visit. Respondent dilated the eye, and found a large number of vitreous floaters present. Respondent concluded from the presence of these floaters that the patient had probably suffered a vitreous hemorrhage. The most common reason for floaters to be present in a postsurgical cataract patient with a vitreous hemorrhage is retinal tear. Respondent could not, however, actually see the retinal tear upon visual examination. The patient was seen again on April 16 and on April 18, 1980, complaining of an increase of black soots in her left eye. Upon examination, Respondent noted the presence of vitreous traction in the left eye, and determined that the patient should be scheduled for cryo-pexy surgery to be performed in his office on April 21, 1980. Cryo-pexy surgery is an operation that involves the application of cold, in this case a local drop of opthane, to the eyeball in order to produce a tissue destruction to release adhesions thereby avoiding potential retinal tear or detachment. The procedure can be performed in a physician's office, as opposed to a hospital, and requires only 10 to 15 minutes to perform. At the time cryo-pexy surgery was to be performed, Respondent had been unable to actually observe a retinal tear, although he had noted the presence of retinal traction. Respondent felt, however, that a retinal tear could have been caused by the placement of the needle through the pars plana during the course of performing the posterior sclerotomy on January 30, 1980. In fact, many ophthalmalogists perform cryo- pexy at the same time as a posterior schlerotomy in order to prevent a retinal tear from developing as a result of that procedure. Respondent chose to recommend cryo-pexy surgery for a variety of reasons. Among them were the recent cataract surgery, the implantation of an intraocular lens, the performance of the posterior sclerotomy, and the' patient's history of heart disease which would have made it more complicated to perform cutting surgery as opposed to cryo-pexy should an actual retinal detachment occur. The patient had a history of recent phlebitis which had hospitalized her, so that the possibility of placing her under general anesthesia in order to perform major surgery for a retinal detachment thereby leaving her inactive in a hospital bed for a period of days could have resulted in a complication of her phlebitis. The decision to perform cryo-pexy surgery involved the exercise of clinical judgment. Respondent, by necessity, had to weigh the dangers of performing the surgery against problems that might be associated with failure to perform the procedure. The three principal reasons advanced in this record for not performing this procedure were that Respondent's records indicated only the presence of "floaters" and not an actual vitreous hemorrhage; Respondent could not actually visualize the retinal tear prior to recommending surgery; and, the performance of cryo-pexy could have further traumatized an eye which had already been subjected to considerable surgical manipulation. In response to these considerations, Respondent testified, without contradiction, that he considered the presence of "floaters" to be synonymous with vitreous hemorrhage and, therefore, saw no reason to actually note the presence of hemorrhage in his notes. Further, although Respondent could not actually see a retinal tear in the patient's eye, based on his course of treatment of the patient he was aware of the site through which he had placed the needle in performing the posterior sclerotomy, and reasonably concluded that the performance of that procedure, in the presence of so great a quantity of floaters in the patient's eye, could have resulted in a retinal tear. In short, the patient's symptoms were consistent with development of a vitreous hemorrhage following cataract extraction. In light of the fact that the cataract extraction included the performance of a posterior sclerotomy through the pars plana, there was every reason to believe that the patient might have had a hole somewhere in the region of the sclerotomy site. Under these conditions cryo-pexy is an acceptable means of treating this condition despite being unable to see an actual retinal tear. The risk in delaying the performance of the cryo-pexy was that the retina could detach and the problem thereby become more difficult to manage. In making the decision to perform cryo-pexy, the Respondent weighed the risk of performing the procedure against the risk of not performing it, and reasonably determined that the best course of treatment was to perform the procedure.
The Issue The issue is whether the Respondent is subject to discipline for engaging in practice beyond the scope of opticianry.
Findings Of Fact At all times material to this action, Dory Gomez-De Rosas has been a licensed optician in the State of Florida, holding License DO 0001724. She was an owner of and employed as a licensed optician at Care Optics, located at 1057 North Homestead Boulevard, Homestead, Florida. On May 16, 1989, Patient #1 went to Care Optics to have her eyes examined after having made an appointment about a week earlier. A complete eye examination was performed on Patient #1 by the only woman who was present in the office. That examination included a glaucoma test. Patient #1 intended to buy her glasses elsewhere. She paid $30 for the examination. Patient #1 received a business card from the woman who performed her eye examination which contained measurements. Those measurements were findings of the refractive indices for Patient #1, which would be used in making eye glasses. The information provided on the back of the card, however, was incomplete. The information was not written on a prescription form, as would an ordinary prescription nor was it signed by anyone. A prescription must be signed by an optometrist or opthalmologist. Patient #1 took the card to her regular optician, Mr. Stellabotte. Because he could not prepare glasses from the information on the back of the card, he attempted to contact the opthalmologist or optometrist who seemingly had prescibed the lenses for Patient #1 at Care Optics. There was no opthalmologist or optometrist at Care Optics when Mr. Stellabotte called. The Department delivered a subpoena duces tecum to Care Optics to obtain the records of Patient #1, but Care Optics was unable to locate any records for Patient #1, and provided an affidavit to that effect. Patient #1 returned to Care Optics and received a refund of the $30 she had paid. She then was examined by another optometrist in Homestead and had the prescription filled by Mr. Stellabotte. Patient #1 identified the Respondent as the woman who performed the total eye examination and glaucoma test on her at Care Optic after seeing a photocopy of the examination photograph which Respondent had provided to the Board as part of her licensure application as an optician. After viewing the Respondent at the hearing, it is obvious that the licensure photograph which Patient #1 identified is a photograph of the Respondent. The Respondent engaged in the diagnosis of the human eyes by performing a glaucoma test on Patient #1, and by determining the refractive power for Patient #1's eyes during the examination which the Respondent performed at the office of Care Optics on May 16, 1989. She also was guilty of deceit by leading Patient #1 to believe that she was an optometrist who was competent to examine her eyes. The Respondent attempted to prescribe lenses for Patient #1 by providing the Respondent with a business card which contained on its back her findings of refractive powers for correction of Patient #1's eyes. This is not an ordinary way to provide a prescription for lenses.
Recommendation It is recommended that a Final Order be entered by the Board finding the Respondent guilty of the violation of Sections 484.013(3), Florida Statutes, and 484.014(1)(f) and (m), Florida Statutes, that a fine of $1,750.00 should be imposed; that the Respondent should be suspended from the practice of opticianry for a period of 90 days, and should be placed on probation for a period of one year. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of January, 1991. WILLIAM R. DORSEY, JR. 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 16th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4970 Rulings on findings proposed by the Department: All findings by the Department have been adopted, although they have been edited in the findings of fact made here. Rulings on findings proposed by the Respondent: 1 and 2. Adopted in Finding 1. Rejected. The photograph was sufficiently identified as that of the Respondent, and could be readily determined to be a photograph of the Respondent after seeing the Respondent at the hearing. See, Finding 6. Rejected as unnecessary. The identification by Patient #1 of the Respondent was sufficient. The photocopy of the photograph in the Department's files was sufficient for use by the patient in identifying the Respondent. Rejected as insufficiently persuasive. Patient #1 was able to recall, in a general fashion, the test given to her by the Respondent. They were not the type of tests which an optician could perform. Patient #1's testimony has been accepted. See, Finding 4. Patient #1 obviously went to Care Optics to obtain a prescription, since she always intended to buy her glasses from Mr. Stellabotte. Accepted in Finding 3. The information written on the back of the card did not constitute a prescription, but it was given to Patient #1 by the Respondent at Care Optic. Rejected. The testimony of Mr. Stellabotte as to the nature of the card he received from the Respondent is not fully accepted. The card which Patient #1 received from the Respondent is exhibit #3, and any testimony to the contrary by Mr. Stellabotte is the result of imperfect recollection. Rejected as unnecessary. The identification of the photograph of the Respondent from the Department's licensure files adequately identified the Respondent as the person who performed the eye examination. It was not necessary for the Department to produce any handwriting analysis. The testimony of Patient #1 is sufficient on this point. Rejected as argument. The testimony of Patient #1 identifying the Respondent is sufficient. Rejected as unnecessary. Rejected as inconsistent with the testimony of Patient #1. She had her eyes examined. The information she received from the Respondent was not derived from a mechanical analysis of the glasses she then had. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Garfield & Associates 3500 North State Road 7, Suite 333 Fort Lauderdale, Florida 33319 LouElla Cook, Executive Director Department of Professional Regulation Board of Opticianry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 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
