Findings Of Fact Petitioner is an applicant for licensure as an optometrist in the State of Florida. He received a Bachelor's Degree in Biology from Youngstown State University in 1985. In 1989, Dr. Martuccio graduated from the Ohio State University College of Optometry where he had followed a four-year course of study prior to receiving his optometry degree. Dr. Martuccio has been practicing optometry in Ohio since 1989. When Dr. Martuccio took the 1989 optometry examination for licensure in Florida, he received a passing grade on the written portion of the examination but not on the clinical portion. That passing grade on the written examination remained valid when he took the 1990 optometry exam. Therefore, in 1990 Dr. Martuccio only had to repeat the clinical part of the examination. Dr. Martuccio received lower than a passing grade on that clinical examination. For the clinical examination, an applicant is required to bring his or her own "patient." The clinical examination is conducted by having a candidate perform procedures requested by the examiners on the "patient." The clinical portion of the optometry examination is divided into two sections. On Section 1 an applicant can receive a possible score of 48 points. Dr. Martuccio received a perfect score of 48 points on that Section. The total passing grade for Section 1 and Section 2 is 80 points. Therefore, Dr. Martuccio needed to receive a total of 32 points out of a possible 52 points on Section 2. However, the grades given to Dr. Martuccio on Section 2 totaled only 27.5. His total score for the clinical portion of the 1990 optometry exam was, therefore, 75.5. Section 2 of the clinical examination is divided into 16 different procedures. Each of the 16 procedures has a maximum score that varies depending on the weight given to the procedure. The grading is done by two examiners who are practicing optometrists. If both examiners agree, the candidate either receives no credit or full credit depending on whether they considered him to have properly performed the procedure requested. If they disagree, the candidate is given one-half of the possible points on that procedure. Dr. Martuccio has challenged the scores he received on four of the procedures in Section 2 of the September, 1990, clinical exam. Those four procedures, in the order in which they were performed, are: BIO 2 (Binocular Indirect Opthalmoscope), Anterior Biomicro 4 (Anterior Biomicroscopy), Anterior Biomicro 9 (Anterior Biomicroscopy), and Gonio 15 (Gonioscopy). In Binocular Indirect Opthalmoscope 2 Dr. Martuccio was required to show a clear view of the fundus (back of the eye). The back of the eye is visible through the dilated eye by means of a binocular headpiece worn by the candidate and a hand-held lens, which are focused together. This procedure is very simple to perform. It is a procedure which he has been doing since "day one in optometry school," and which Petitioner performs daily in his private practice. One of the graders who evaluated Dr. Martuccio's performance on BIO 2 indicated that he performed the procedure properly, but the other grader indicated that his demonstration was "out of focus". Dr. Martuccio's sight is perfect in both eyes, and he is capable of detecting whether an image is out of focus. Since the "patient" did not move during the examination process, then one of the graders made a mistake in his evaluation. Dr. Martuccio correctly performed BIO 2, and he should receive 2.5 additional points for that procedure. The next procedure in dispute is Anterior Biomicroscopy 4, which was worth a total of four points. The two graders disagreed as to whether Dr. Martuccio properly performed the procedure, and he, therefore, received only two points. This procedure required him to display the corneal endothelium. To do that, Dr. Martuccio used a slit lamp which is an instrument that projects a beam of light into the patient's eye. One grader gave Dr. Martuccio full credit for this procedure. The other gave no credit, commenting that Dr. Martuccio used an optic section rather than a parallelpiped. There is an elementary and fundamental difference between a parallelpiped and an optic section of light projected from a slit lamp. The slit lamp has a separate adjustment that determines the width of this beam of light. Since Dr. Martuccio did not change the width of the beam of light after he began the procedure, that width did not change between the time the first examiner and the second examiner evaluated his work. One of the examiners was mistaken in grading Dr. Martuccio's performance, and Dr. Martuccio was scored incorrectly on this procedure. For Anterior Biomicroscopy 9, Dr. Martuccio was instructed to focus on the anterior vitreous, part of the gel-like substance in the middle of the eye. In some patients vitreous strands are present and may be visible during the examination. However, in healthy patients vitreous strands are not present and the anterior vitreous is extremely clear. In those situations, the beam of light from the slit lamp will have nothing from which to reflect. Dr. Martuccio utilized the standard method of examining the anterior vitreous by focusing the instrument on the back of the lens, which is immediately adjacent to the beginning of the anterior vitreous. The focus is then projected inward, into the eye, which will automatically set the focus within the anterior vitreous. Dr. Martuccio's patient had no vitreous strands, protein particles, or other objects in his anterior vitreous. Thus, there was an absence of particles which would reflect light back to the observer from the subject. The examiner who gave Dr. Martuccio no points for this procedure noted, as his explanation, that vitreous strands were not visible. However, as explained by Dr. Martuccio and corroborated by the Department's expert witness, that was an inappropriate comment if the patient had no vitreous strands. Since the examiner's comments were inappropriate, indicating he used an erroneous criterion, Dr. Martuccio was given an incorrect score on this procedure. Instead of two points, he should have received the full four points. The last procedure in issue is Gonio 15. This was worth a total of four points for which Dr. Martuccio received only two. This process requires a gonioscope to be placed on the patient's eye, in much the same fashion as a contact lens is placed on the eye. Once the gonioscope is placed, a mirror inside this instrument allows the optometrist to examine structures of the eye at a sideways angle and see portions of the eye which are not visible by looking straight into the eye. Dr. Martuccio installed the gonioscope properly and adjusted it so that the structures in question were clearly visible. He received full credit from one of the examiners but no credit from the other examiner whose comment was that the structures were "out of focus". It is unreasonable to believe that Dr. Martuccio did not keep the structures of the eye in question in focus during this examination. He was able to perform all of the procedures easily, without any delays, and had no problem doing all the procedures in the allotted time, which was relatively brief. Dr. Martuccio's "patient" was an ideal subject who did not move in any fashion so as to cause the focus to change for any of these procedures. Further, Dr. Martuccio is knowledgeable about structures of the eye and the use of all of the instruments involved in this case. He has had extensive training and experience in these areas not only through his formal education in optometry, but also due to the fact that Dr. Martuccio has been in private practice for over two years, using these instruments on a daily basis. Considering that Dr. Martuccio has perfect vision in both eyes, it is difficult to conceive that he could not keep his instruments in focus for the few seconds it took for both examiners to review his work. The Department's expert witness, Dr. Chrycy, characterized the procedures that are called for in Section 2 of the clinical examination as being fundamental and relatively simple. Candidates who cannot perform these functions are clearly unqualified to be an optometrist. Dr. Chrycy expects all graduates of optometric school to be able to keep images in focus. Dr. Martuccio has been licensed in the State of Ohio for over two years and has recently been licensed in the state of Pennsylvania. He passed the National Board examination which is recognized in at least 10 states for licensure. Both the National Board and the Ohio licensure examinations have clinical components similar to Florida's. Dr. Martuccio passed both of those clinical examinations on his first attempt. When considered in light of Dr. Chrycy's characterization that the examination tests fundamental, basic ability and is not difficult, one cannot accept the proposition that Dr. Martuccio was fairly graded in this examination process. The general passing rates that candidates taking the Florida optometry exam have experienced since 1986 are quite low. In 1987, only 51% of those taking the clinical portion of the examination passed; in 1988, 59%; in 1989, 57%, and in 1990, 53%. The overall pass rate for the entire exam is even lower: in 1987, only 30%; in 1988, only 42%; in 1989, only 45%, and in 1990, only 34%. If taken literally, these scores mean that the typical applicant for licensure as an optometrist in Florida is incompetent at using the basic, everyday instruments employed by optometrists and by optometric technicians and is incapable of identifying the different parts of the eye. Such a conclusion is without credibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered awarding to Petitioner 8.5 additional points on the clinical portion and finding that Petitioner achieved a passing score on the September, 1990, optometry examination. RECOMMENDED this 13th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2354 Respondent's proposed findings of fact numbered 1-3 have been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 5 and 7 have been rejected as being irrelevant to the issues under determination herein. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Diane Orcutt, Executive Director Department of Professional Regulation/Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 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
The Issue The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
The Issue The issue to be resolved in this proceeding concerns whether Respondent's license to practice medicine should be subject to sanctions based upon alleged violations of Section 458.331(1)(m) and 458.331(1)(t), Florida Statutes. Specifically, it must be determined whether he departed from the appropriate standard of medical care and treatment of a patient in the course of his practice of ophthalmology and whether his record keeping with regard to the care and treatment of that patient met appropriate standards.
Findings Of Fact Stipulated Facts The Petitioner is the state agency charged with regulating the practice of medicine, pursuant to Section 20.30, Florida Statutes, and Chapter 455, Florida Statutes. The Respondent is, and at all times material hereto, has been a licensed medical doctor in the State of Florida, having been issued license number ME0004933. The Respondent's address is 820 Prudential Drive, Suite 712, Jacksonville, Florida. On or about September 13, 1989, patient D.P., a 65-year-old-female, presented to the Respondent for evaluation regarding extremely high intra-ocular pressure and severe pain in both eyes. Patient D.P. had undergone abdominal surgery two days prior to the Respondent's examination, which was her second abdominal surgery in two weeks. The Respondent examined patient D.P. and diagnosed her with acute angle closure glaucoma, which had been present since the time of her second abdominal surgery, two days earlier. The Respondent treated patient D.P. with topical medications to decrease the intra-ocular pressure. Patient D.P.'s left eye responded to treatment with decreased pressure. The intra-ocular pressure in the right eye remained extremely high, in excess of 70 millimeters. On or about September 13, 1989, the Respondent performed a vitreous tap of the patient D.P.'s right eye, which immediately relieved the intra-ocular pressure. The Respondent did not consult patient D.P.'s surgeons or internists prior to performing the vitreous tap, regarding the possible use of intravenous medications. On or about September 14, 1989, the Respondent consulted Dr. James Staman, a retinal specialist, due to the patient's diminished vision in her right eye. Dr. Staman examined patient D.P. and diagnosed her with a vitreous hemorrhage. (End of stipulated facts). The Respondent has been licensed to practice medicine in the State of Florida since 1954 and has practiced in the field of ophthalmology since 1966. He has been board certified in the field of ophthalmology since 1969. He has never been investigated or disciplined by the Department of Business and Professional Regulation or any predecessor agency charged with regulating the licensure and practice standards of medical doctors in Florida. The Respondent maintains hospital staff privileges appropriate to his practice and has never had hospital staff privileges denied, revoked, or suspended at any hospital at which he has had privileges. Patient D.P. is a 65-year-old-female, who presented to the Respondent on September 13, 1989 complaining of severe pain in both eyes and with regard to which the Respondent immediately determined the presence of extremely intra- ocular pressure in both eyes. Patient D.P. had recently undergone a gastrectomy, a major abdominal surgical procedure, within 48 hours prior to presenting to the Respondent. This was the second abdominal surgery she had undergone within the past two weeks. When she presented to the Respondent on that date, she was in severe pain from the increased intra-ocular pressure in both eyes and appeared to be weak and in great discomfort. Pursuant to order of her doctors who attended and treated her with regard to the abdominal condition and surgery, the patient was and had been "NPO" for four weeks. This condition or situation means that she was forbidden from taking food or liquids of any type by mouth during this period of time. Upon evaluating the pressure in her eyes, the Respondent determined that the intra-ocular pressure in her left eye was 35 millimeters of mercury and in excess of 70 millimeters of mercury in the right eye. This is because the standard instrument with which her pressure was tested by the Respondent only depicts a maximum pressure of 70 millimeters of mercury. The normal intra- ocular pressure for such a patient would be 17-18 millimeters of mercury. Upon evaluating and examining the patient, the Respondent determined her condition to be bilateral acute angle closure glaucoma. He determined that the condition had been present since her surgery 48 hours earlier. The anesthesia from the surgery had precipitated dilation in both eyes which, in turn, precipitated the acute angle closure glaucoma. This occurred because, upon the dilation of the pupils of both eyes caused by the anesthesia, the iris folded back as the pupil expanded, and the folds of the iris occluded or blocked the drain structure by which fluid can drain from within the eye. The inability of the fluid to drain thus caused the severe increase in intra-ocular pressure and thus the glaucoma condition. The Respondent initially treated the acute angle closure glaucoma in both eyes with glycerin. This is a topical medication designed to reduce the amount of swelling in the cornea and to increase absorption of medication into the eye. The Respondent also initially treated the condition with pilocarpine. This is a topical medication administered to constrict the pupil and thus open the channel in the trabecular meshwork (the drainage structure) in an attempt to break the attack of acute angle closure glaucoma by allowing the eye fluid to drain and thus relieve the pressure. The intent is that by constricting the pupil, the iris will stretch with the pupil's closure so as to remove its folds from the position of blocking the channel in the trabecular meshwork. The Respondent initially administered a "beta blocker" medication in an attempt to open the trabecular meshwork by cutting down on the amount of aqueous fluid produced by the ciliary body. The topical medications, indeed, broke the attack of glaucoma in the left eye and the intra-ocular pressure in that eye returned to normal levels. However, after approximately a four-hour trial of the array of topical medications used by the Respondent, the attack of glaucoma in the right eye had not subsided at all. Prolonged elevated intra-ocular pressure of the magnitude of over 70 millimeters of mercury in the right eye posed a great danger of loss of vision in that eye due to potential occlusion of the ocular artery supplying blood to the eye and concomitant permanent damage to the optic nerve. The artery can be occluded or closed off due to such excessive pressure because the pressure at that level will exceed the blood pressure generated by the heart through the vascular system, including the artery supplying that eye. This results in the ocular pressure overcoming the blood pressure within the artery, thus constricting the artery and, therefore, the blood supply to the eye. The loss of blood supply to the eye in a short time, possibly 90 minutes or less, can cause the eye tissue normally served by the artery to become necrotic (i.e. to die). Necrosis of the internal eye tissue, in turn, can cause complications by weakening the pertinent structures of the eye, such as the tissue by which the retina is attached and held in position. The Respondent observed the patient and performed this clinical treatment for approximately four hours without being able to relieve the elevated intra-ocular pressure in the right eye. The Respondent knew, given the symptoms and history with which the patient presented, that severe pain had been experienced by the patient in her eyes since she awakened from the anesthesia administered for her surgery. Thus, he knew that for approximately two days, the glaucoma condition had been operating on the structures of the eye. Accordingly, he knew that time was of the essence if he was going to be able to relieve the glaucoma and thus save the vision, or some of it, in her eye. After these hours of clinical attempts to cure her condition, and in view of the state of urgency the Respondent recognized in the patient, who had already experienced severely-elevated intra-ocular pressure for two days, the Respondent determined that the emergency nature of the patient's situation precluded use of the time necessary to consult with her surgeon and anesthesiologist, to attempt to hospitalize her, to administer a general anesthetic, and perform an alternative surgical procedure. The Respondent, therefore, elected to perform a "vitreous tap". The vitreous tap involves using a hypodermic needle with a "guarded needle" (meaning that the needle is protected so that only a small portion of the point of the needle projects from the guard structure) to withdraw a small amount of the vitreous fluid. This was done to reduce the pressure, open the angles at the trabecular structure in the eye and thus break the attack of acute angle closure glaucoma and return the eye to normal intra-ocular pressure. The vitreous tap was performed at approximately 4:05 that afternoon and was successful. It immediately broke the attack of acute angle closure glaucoma and the intra-ocular pressure returned to a normal range. However, a vitreous hemorrhage resulted from the vitreous tap caused by the needle striking a small blood vessel in the pars plana area of the eye. This area cannot be visualized when performing the vitreous tap because it is inside the eye. A vitreous hemorrhage is a known and accepted complication or risk of a vitreous procedure. However, it has a low incidence of occurrence of approximately 3-5 percent. Upon determining that the hemorrhage condition was present and on or about September 14, 1989, the Respondent obtained a consultation with Dr. James Staman, a vitreal-retinal surgeon, due to the diminished vision in the patient's right eye. Dr. Staman examined the patient and diagnosed a vitreous hemorrhage in her right eye. The incidence of retinal detachment from a vitrectomy is approximately 5-10 percent. It would have had a higher risk in this patient's case, due to the probability of her already suffering permanent damage to the eye and eye tissue caused by necrosis, which was caused by loss of blood supply to the eye during the extended period of high intra-ocular pressure. This likely damaged the optic nerve and occluded the ocular artery serving that eye or portion of the eye. Dr. Staman performed a vitrectomy and removed the hemorrhage or blood from the patient's eye. Unfortunately, a retinal detachment occurred as a complication of that vitrectomy. This chain of events ultimately resulted in the patient losing the vision in her right eye. This was because of the determination that the retinal detachment could not be repaired without causing the loss of vision itself. Dr. Doyle testified as an expert witness for the Respondent. Dr. Doyle is a board certified ophthalmologist specializing in the field of glaucoma and particularly in the sub-specialty area of glaucoma management, including surgical glaucoma management. Additionally, Dr. Doyle is a holder of a fellowship, involving further specialty training in the field of treatment and management of glaucoma and surgical alleviation and management of glaucoma. He is determined to be the most qualified expert witness by training, education and experience in the particular specialty concerning glaucoma, with which this patient's condition is characterized, as is provided in his testimony depicted in the transcript of this proceeding and in his curriculum vitae in evidence. This depiction of his training, education and experience is adopted, by reference, as fact. According to Dr. Doyle, the loss of vision in the right eye was not caused by the vitreous tap. Rather, the precipitating factor was the retinal detachment which occurred as the result of the direct vitrectomy surgery. A vitreous hemorrhage is a known complication of a vitreous tap and a retinal detachment is a known complication of a vitrectomy. The Respondent and all of the expert witnesses agreed that the patient had probably already suffered permanent damage to the right eye, prior to the performance of the vitreous tap, in the form of corneal decomposition, cataract formation and optic nerve damage. Dr. Doyle's testimony, as corroborated by that of the Respondent, established that, in all likelihood, significant necrosis of the eye tissue involved in the structure by which the retina is attached had occurred due to occlusion of the artery supplying blood to that area of the eye by the 48 hours or more of elevated intra-ocular pressure. The elevated intra-ocular pressure occurred as a result of the anesthesia administered to the patient during her abdominal surgery. The Respondent and all expert witnesses agreed that the Respondent had utilized an appropriate and proper procedure in performing the vitreous tap. However, Drs. Baumann and Berg, testifying for the Petitioner, do not agree that the vitreous tap should have been performed to relieve the attack of acute angle closure glaucoma in the right eye. Standard of Care The Respondent met the standard of care under the circumstances with which this patient presented, in his care and treatment of patient D.P. when he performed the vitreous tap to break the attack of acute angle closure glaucoma in patient D.P.'s right eye. The usual treatment options or alternatives for the treatment of acute angle closure glaucoma were not available to the Respondent due to the extremely unusual set of precipitating circumstances with which the patient presented to him. The patient had already had extreme intra- ocular pressure of approximately 48 hours duration, based upon all of the evidence available to the doctor in performing his diagnosis and examination of treatment options. Dr. Baumann admitted that the situation was "urgent", and Dr. Berg admitted that the situation was an "emergency" and that the Respondent's "back was up against the wall" under the circumstances. Because of this, the treatment, including surgical options preferred by Drs. Baumann and Berg, was not effectively available to the Respondent in an attempt to save the vision in the patient's eye. This is because, in order for a general anesthetic to be administered and the patient prepared, monitored and evaluated for the surgery, she would have had to be hospitalized, with accompanying consultation with her internal medicine physician, her abdominal surgeon, and the anesthesiologist. All of this process would have taken approximately six hours, from the time the decision was made to perform the vitreous tap, which was made when the topical medications failed to alleviate the attack, until the surgery could be performed in the hospital. Even if the patient's eye was not already significantly damaged by the 48 hours of elevated intra-ocular pressure when she presented to the Respondent at his office, substantial damage to her vision would have occurred as a medical certainty if another six hours had elapsed after the unsuccessful conclusion of conservative, clinical treatment between 4:00 p.m. and 4:30 p.m. The first treatment option in an angle closure glaucoma case is topical therapy in an attempt to reduce the production of fluid by the ciliary body in the eye and to cause the iris to constrict and thus open the angle and its drainage structure. The Respondent initially treated the angle closure glaucoma in both eyes with topical medications, including pilocarpine, glycerin and a beta blocker. He repeated this topical therapy for approximately three hours at the appropriate intervals which all testifying physicians, including Dr. Doyle, agree was "normal, appropriate care". Under ordinary circumstances, if the topical medications failed to lower the intra-ocular pressure, the use of diamox or mannitol would be the next treatment alternative to try. However, diamox, a carbonic anhydrase inhibitor, which affects the ciliary body to reduce the production of fluid, would not have produced any greater benefit than the topical medications which had failed already. Mannitol is a hyperosmotic medication. It is ordinarily administered by mouth, which allows the body's stomach and intestines to regulate and gradually accomplish a safe absorption of the medication. However, oral mannitol was not an option to this patient because, under her previous doctor's orders, she was not allowed to take anything by mouth at times pertinent to this proceeding, including the day and times when the Respondent was treating her for the glaucoma. Mannitol reduces vitreous volume by reducing water everywhere in the body, including the eyes. The fluid is drawn into the blood stream, which, however, increases blood volume. Administration of mannitol intravenously would have put the patient at significant risk for an overload of volume in the blood which would have caused readily increased blood pressure with attendant possible medical complications, massive congestive heart failure, or kidney problems. These are life-threatening risks which would have necessitated hospitalization, evaluation and monitoring in the hospital before and during administering of intravenous mannitol. By the time this could have been accomplished, the vision in the eye would have already been lost. Dr. Doyle and the Petitioner's expert, Dr. Baumann, both agreed that administration of intravenous mannitol would have been dangerous for this patient. Intravenous mannitol is only 50 percent effective in such a situation, in any event, and is contra-indicated in patients such as D.P., who are post- gastrectomy surgery. This 65-year-old patient, weakened by her second gastrectomy surgery in a four-week period, involving the use of general anesthetics, was simply not a safe candidate for the administration of mannitol under the risky intravenous method which would have been necessary with the patient. The risk of kidney or heart failure and other complications was simply too great. The Petitioner's expert, Dr. Baumann, admitted that it was reasonable for the Respondent to have these concerns about the use of diamox and intravenous mannitol and further that the Respondent was not negligent in deciding not to use those medications. Under ordinary circumstances, if the topical therapy and the administration of medication failed to relieve an attack of acute angle closure glaucoma, the next course of treatment to be considered would be an argon or YAG laser iridectomy or an irridoplasty in order to place a small hole in the iris to relieve the pressure differential in the eye. A laser is a focused beam of light, at high energy, which can insert the necessary hole in the eye to relieve the intra-ocular pressure. It requires a clear media over the iris in order to penetrate the eye and make the hole in the required position. In this case, due to the extraordinary high intra-ocular pressure over a two-day period, the cornea was very cloudy and hazy. This precluded the laser being effective and created the potential for damage to the cornea had the laser been directed against the eye. Dr. Doyle and the Petitioner's experts, Dr. Berg and Dr. Baumann, all agreed, that in a patient such as D.P., with intra-ocular pressure of over 70 millimeters of mercury extending for 48 hours, the cornea would be very cloudy. The Respondent's testimony confirms this. After the vitreous tap was performed and the intra- ocular pressure relieved, the edema and cloudiness of the cornea resolved itself so that the Respondent was able to perform a successful argon laser iridectomy the following day and a YAG laser irridoplasty in his office five days later, to prevent a recurrence of the problem by providing an additional means of fluid drainage. Under ordinary circumstances where topical therapy, medication therapy, and laser iridectomy had either failed or were not viable options, then surgical treatment would be the next consideration. The surgery would include either surgical iridectomy or a trabeculectomy. A surgical iridectomy creates a small hole in the iris which relieves the pressure. A trabeculectomy creates a secondary drain for the eye. The Respondent was justified in not pursuing a surgical iridectomy or trabeculectomy in that the surgery could not have been done under a local anesthetic and would have required general anesthesia. This is undisputed. This would have required surgery in the hospital operating room, including the necessity for insertion of a tube, which might have caused risk to her recent abdominal surgery. It would have necessitated contacting her surgeon, her internal medicine physician, and her anesthesiologist for pre-surgical evaluation and clearance. This would have taken considerable time, at least six hours, thereby, within reasonable medical certainty causing permanent significant damage or entire loss of vision to the eye. A surgical iridectomy or trabeculectomy are not benign procedures and carry the highest complication rate of any ophthalmic procedure, when used for malignant glaucoma and, indeed, the accepted treatment for malignant glaucoma (albeit a different type of glaucoma condition) is a vitreous tap. Either surgical procedure would have had a risk of complication resulting in loss of vision in the eye of at least 3-5 percent or more, thus, the same or greater level of risk than that attendant to the vitreous tap procedure. Paracentesis, a surgical procedure to make a small hole in the anterior chamber of the eye, was itself not a reasonable treatment alternative under the circumstances. It was simply not feasible because the anterior chamber of the eye had virtually ceased to exist because the iris diaphragm had bulged forward through the space normally occupied by the anterior chamber because of the great pressure behind it. Dr. Doyle established that the Respondent's vitreous tap effected a complete cure of the glaucoma condition in patient D.P. A vitreous tap is a procedure recognized in the medical literature as a treatment for several ophthalmic conditions, including malignant glaucoma, positive pressure during cataract surgery, and for the purpose of obtaining vitreous material for pathological testing (biopsy). The medical literature, indeed, does not address the use of a vitreous tap as treatment for acute angle closure glaucoma because the medical literature and text books tend to deal with more common presentations of all diseases. None of the literature addresses treatment of acute angle closure glaucoma under the unusual set of emergency circumstances presented with this case. The Respondent's expert, Dr. William Doyle, is a board-certified ophthalmologist who has a sub-specialty in glaucoma management and treatment, including surgical management thereof. He is one of only a handful of fellowship-trained glaucoma specialists in the State of Florida and the only one in the North Florida area. He sees patients on referral from other doctors in Florida and South Georgia, who have unusual glaucoma-related problems. Dr. Doyle is an assistant professor of ophthalmology at the University of Florida and is responsible for teaching glaucoma management and treatment. He has authored some twelve article, book chapters, and other publications specifically in the field of glaucoma management and treatment. According to Dr. Doyle, if the vitreous tap procedure had been successful, the Respondent "should have written it out for the literature as a viable, interesting way to cure a disease". The Petitioner's expert, Dr. Berg, in his report attached to his deposition, referenced an article in International Ophthalmology Clinics, by Kevin C. Greenridge, M.D., of the Metropolitan Hospital Center, Department of Ophthalmology, New York, New York, and which Dr. Berg admitted was authoritative in the field of acute angle closure glaucoma. The article specifically states that in cases of acute angle closure glaucoma, for a duration of more than 24 hours, the eyes are more inflamed and have evidence of corneal decomposition, which are relative contra indications to argon laser iridectomy. Since the acute angle closure glaucoma had a duration of 48 hours when the Respondent first saw the patient, corneal decomposition could have been significantly advanced by that point such that the set of conditions requisite to causing the retinal detachment, which ultimately led to the loss of the patient's sight in that eye, were likely already in place. Thus, the vitreous hemorrhage caused by the vitreous tap may not itself have been the cause of the loss of sight. Medical Record Issue The Respondent's office records note "Vitreous tap. 4:30 p.m., immediately patient felt better". The Respondent also made an entry in the patient's hospital chart on the date of the vitreous tap which noted: Acute angle closure glaucoma right eye. Totally unresponsive to treatment. Pressure of 70 unaffected by treatment. Pars plana 1/2 cc vitreous tap done with immediate relief. Both eyes very shallow [referring to anterior chamber]. Started on pilocarpine and both eyes will need argon laser iridectomy soon. A copy of the hospital note was included and contained in the Respondent's records of the patient. In addition, the Respondent obtained a signed, written, informed consent for the procedure. The Respondent's records, including his office records and the note in the hospital chart, adequately document the course of therapy leading up to the vitreous tap and the vitreous tap procedure itself such that the Respondent's medical record keeping would adequately inform the Respondent in the future when reviewing the patient's records with a view toward further follow-up and treatment of the patient's entire status. They would also adequately inform any physician to whom the patient was later referred by the Respondent of her status, the treatment and procedures performed, and the symptoms and diagnosis involved in the patient's care and treatment.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Respondent be found not guilty of violating Sections 458.331(1)(m) or (t), Florida Statutes, and that the Administrative Complaint against the Respondent be dismissed in its entirety. DONE AND ENTERED this 7th day of September, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5990 Petitioner's Proposed Findings of Fact 1-16. Accepted, but not necessarily for their purported material import. Rejected, as contrary to the preponderant, probative evidence. Accepted. Accepted, but not itself dispositive of the material issues presented. Accepted. 21-26. Accepted, but not necessarily for their purported material import and subordinate to the Hearing Officer's findings of fact on this subject matter. 27. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and as not probative of the medical records being inadequate as a matter of fact and law. 28-29. Accepted. 30. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. 31-41. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not dispositive of the material issues presented. 42-43. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 44-46. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter, and for the additional reason that these proposed findings are not dispositive of the material issues presented. 47-50. Accepted, in part, but not as materially dispositive of the issues presented for resolution and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-55. Accepted, to the extent not rejected by or subordinate to the Hearing Officer's findings of fact. Those proposed findings of fact not treated in the Hearing Officer's findings of fact are rejected as unnecessary or immaterial. COPIES FURNISHED: Alex D. Barker, Esquire Department of Business and Professional Regulation 7960 Arlington Expressway Suite 230 Jacksonville, Florida 32211 Jeptha F. Barbour, Esquire Post Office Box 447 Jacksonville, Florida 32201 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner sat for the August 24, 1991 Optometry licensure examination. He did exceedingly well on two of the three portions of the examination. His grade on the clinical portion (sections 1 and 2) was 71.5. The minimum passing score was 75.0. Petitioner challenged the behavior of the examiners in section 2 of the clinical portion of the examination, and the grade he received for several individual procedures tested. Petitioner's patient for the clinical examination was his wife, Susan Vazoulas. Mrs. Vazoulas testified that prior to Petitioner entering the examination room for section 2 of the clinical portion of the examination, she overheard the two examiners, one male and one female, discussing material already on their clipboards. The male examiner indicated he had given an "81". The female examiner indicated she had given an "84", but was a "hard liner." Petitioner was not present during this exchange. Mrs. Vazoulas did not see what was on the examiners' clipboards and could not testify with any certainty as to what was being discussed. Every reasonable inference suggests that the examiners' conversation did not apply to Petitioner's section 2 clinical test for the following reasons: The examiners' comments were made before the Petitioner entered the examination room and before he began to take his section 2 clinical examination. The numbers "81" and "84" bear no relationship to any of Petitioner's scores on any portion of his licensure examination. The examiners for section 2 were not the examiners for section 1, whereon Petitioner scored 100%. If anything, had the examiners reached two divergent scores of 81 and 84, respectively, it would more likely suggest the presence of independent judging and the lack of collusion, instead of the presence of collusion and absence of independence as assumed by Petitioner in this instance. The examination room in which section 2 of Petitioner's clinical examination was administered was very small, approximately 8 x 10 feet. During section 2, the two examiners separately viewed each of 16 procedures performed on Mrs. Vazoulas by Petitioner and after each procedure, they individually returned to their respective clipboards to record their scores. The two clipboards were placed on a countertop side by side while not in use. Petitioner and Mrs. Vazoulas each observed the examiners separately marking their respective clipboards but never saw what was written down by either of the examiners. Petitioner and Mrs. Vazoulas felt it would have been hard for each examiner to avoid seeing the score assigned by the other examiner, but neither Petitioner nor Mrs. Vazoulas observed any actual sharing of information or scores during Petitioner's section 2 clinical examination or afterwards. Petitioner and Mrs. Vazoulas testified in terms of the examiners having "the chance" to see each other's clipboard and "the opportunity" for collusion and absence of independence in grading. In this instance, Petitioner considered that identical grades given by both examiners was proof of their collusion and arbitrary and capricious grading. However, similarity of scores is equally susceptible of being interpreted as resulting from each examiner having observed the same performance by Petitioner on each of the 16 procedures and applied the same judging criteria to what s/he saw. The law does not presume illicit behavior without more evidence than that it "could have" happened. Petitioner challenged his section 2 grade for clinical procedures 4-9 for biomicroscopy, alleging that he was graded 17.5 out of a possible 20 points while all parts were checked "yes". In fact, the score sheets show that all parts were not checked "yes" by both examiners. One examiner graded procedure four with "N" for "no". This could result in an "all or nothing" score of zero for that item. Assuming, arguendo, the "yes" and "no" were averaged, Petitioner's score still would not have amounted to the additional 2.5 points Petitioner alleged he was entitled to out of this section of the examination. Respondent's Exhibit 2 is a document titled "Optometry Practical Examination Section 2 - Grading Standards August 1991." The instructions to the examiners state in the second paragraph of that document, "Comment on reason for any NO judgment. Comment if performance was a marginal YES." Thus, examiners could legitimately insert comments even where they responded "yes" in evaluating the performance of the candidate in a given procedure. They did so here. Petitioner challenged his grade on procedure number 15, gonioscopy, stating that partial credit should have been given for the showing of the proper angle. Petitioner's Exhibits 1 and 2, the grade sheets for section 2, reflect that Petitioner received no credit from either examiner. Both "no" responses have comments recorded next to them. Respondent's Exhibit 2, page 4, states the criteria for a "yes" response on procedure number 15, gonioscopy, as: Must be focused on nasal angle with proper illumination Gives proper response to question Both criteria must be satisfied to receive a "yes" response. Petitioner and Respondent concur that Petitioner correctly demonstrated the angle required in procedure 15, gonioscopy, which satisfied one of the two required criteria to receive a "yes" from either examiner. Petitioner attempted, by extrapolation of procedure 5, to show that the remaining criterion was also met. He was not persuasive in this attempt. The grade sheets reflect that Petitioner failed to satisfy the second criterion: to give the correct response to the question posed. Petitioner made no valid showing that he did answer the question correctly or that the points available from this answer would raise his total score 3.5 points for a passing grade. Petitioner challenged his grade for procedure number 1, binocular indirect ophthalmoscopy (BIO). Petitioner admitted that he did this procedure incorrectly by using the 3:00 o'clock position, rather than the 9:00 o'clock position requested by the examiners but felt six points should not have been deducted and it should have been marked "yes, marginal," awarding him a majority of the six lost points. Petitioner did not demonstrate good cause within the grading criteria in evidence why he should have received the "majority," presumably four, points. Petitioner presented no evidence concerning the grading of challenged procedures 11 and 14. As to all of the foregoing, Petitioner's challenge to the effect that he did not understand the grading system was not sufficient to carry his burden of proof to establish that the examination, scoring, and/or grading system was arbitrary or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Professional Regulation enter a final order ratifying the examination grade previously assigned to Petitioner. DONE and RECOMMENDED this 15th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2205 The following constitute specific rulings, pursuant to S120.59 (2) F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: None filed Respondent's PFOF: 1-6 Accepted except for unnecessary, subordinate on cumulative material. 7-13 Accepted except for subordinate material. It is noted that Petitioner bears the burden of proof herein, not Respondent. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 George L. Vazoulas 182C Chestnut Ridge Drive Harrisonburg, VA. 22801 Diane Orcutt, Executive Director Department of Professional Regulation, Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
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
The Issue Was Petitioner properly graded and given appropriate credit for his answers on the July, 1990 Florida Podiatric Medicine Licensure Examination (Florida Podiatry Examination).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issues herein, Petitioner, Paul L. Sheehy, Jr., candidate No. 20017, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state. Petitioner sat for the July, 1990 Florida Podiatry Examination on July 27, 1991. Petitioner obtained a score of 70.0 percent, representing 210 correct answers. A passing grade requires a score of 72 percent, representing 216 correct answers. Shortly before the beginning of the hearing, Respondent agreed to give Petitioner credit for questions 16 and 180 of Clinical I of the examination thereby raising his total score to 70.666 percent. At the beginning of the hearing, Petitioner withdrew his challenge to questions 22, 37, 87, 89, 104, 149, 176 and 178 of Clinical I of the examination and questions 3, 16, 22, 50, 67 and 53 of Clinical II of the examination. During the hearing Petitioner withdrew his challenge to question 27 of Clinical I and question 12 of Clinical II of the examination, leaving only his challenge to questions 103, 114, 138, 144 of Clinical I of the examination. The parties stipulated that the Petitioner was qualified and met all the requirements to sit for the July, 1990 Florida Podiatry Examination, and that Petitioner timely received a copy of the July 1990, Podiatric Medicine Licensure Examination Candidate Information Booklet (booklet). There is a lack of competent substantial evidence in the record to establish that the Florida Podiatry Examination given on July 27, 1990 was misleading in that it tested subjects or disciplines not covered or contained in the booklet, or that it was prejudicial as applied to Petitioner. The first question at issue is question 103 of Clinical I which stated: CASE HISTORY 44 In the exhibit book are photographs for this examination. Identify the photograph in the respective exhibit. 103. Which of the following answer choices is the best description of exhibit #11? Ganglion Cyst Verruca Melanoma Kaposi's Sarcoma Petitioner answered, C, Melanoma and the Respondent's answer was, B, Verruca. Petitioner admitted that his answer was incorrect. However, Petitioner contends that the question comes within the area of histology, an area not specifically mentioned in the booklet to be covered by the examination. Therefore, he was mislead by the booklet into not studying the area of histology. While the booklet does not specifically mention histology as an area of study to be covered in the examination, there were several other areas of study listed in the booklet which conceivably would have covered this question. Therefore, there has been no showing that the Respondent's failure to specifically list histology as an area of study mislead or prejudiced the Petitioner. The second question at issue is question 114 which stated: CASE HISTORY 45 An elderly obese male presents with an acutely inflamed first metatarsophalangeal joint. The pain began late last night and he awoke in severe pain. His past medical history reveals two previous such occurrences which resolved and went un- treated. He reports a history of chronic renal disease and mild hypertension. He presently takes no medication and has no known allergies. He denies use of alcohol and tobacco. Physical exam reveals an acutely inflamed, edematous 1st MPJ. A 3mm ulceration is present dorsally with white, chalky material exiting the wound. Laboratory studies reveal a CBC within normal limits and an elevated uric acid of 9.0mg/100ml. 114. Which of the following would you expect to find on microscopy of the synovial fluid? trapezoidal-shaped violet crystals absence of leukocytes needle-like birefringent crystals reflective hexagonal crystals and many leukocytes Petitioner answered D, reflective hexagonal crystals and many leukocytes. The Respondent's answer was C, needle-like birefringent crystals. Petitioner contends that none of the answers offered were entirely correct but that answer D was the most correct, while answer C was incorrect. Case History 45 would describe gout and pseudogout, but the key is the description of the fluid removed from the joint which is a white, chalky material found only with gout. Additionally, gout produces needle-like crystals (urate) that are negatively birefringent when view under crossed polarizing filters attached to a microscope. Leukocytes would be present in this case history but it would not produce reflective hexagonal crystals or trapezoidal-shaped violet crystals. Answers A and B are entirely incorrect, and although the presence of leukocytes is correct, it is not relevant because leukocytes are a normally found in any infection. Therefore, answer C is the correct answer, notwithstanding the absence of the word negative proceeding the word birefringent. The third question at issue is question 138 which stated: CASE HISTORY 49 A 27 year old athletic individual presents with a severely painful and swollen right ankle following a basketball injury the day before. There is severe ecchymosis and blister formation about the ankle. X-rays reveal (1) a displaced oblique spiral fracture of the lateral malleolus which runs anterior-inferior to posterior-superior at the level of the syndesmosis (2) transverse fracture of medical malleolus. There is gross dislocation and mal position of the talus. 138. If the initial treatment above were to fail, then treatment should consist of: immediate open reduction. wait 4-6 days, then perform open reduction and internal fixation. open reduction contraindicated at any time with this type of fracture. fusion of ankle joint. Petitioner answered A, immediate open reduction and the Respondent's answer was B, wait 4-6 days, then perform open reduction and internal fixation. The correct initial treatment for the patient would have been attempted close reduction as indicated by the correct answer to question 137 which Petitioner answered correctly. An attempted close reduction is an attempt to correctly align the fractured bone by manipulation as opposed to surgically opening the area and aligning the bone visually by touch which is the open reduction and internal fixation procedure. After an attempted alignment of the bone, an x-ray will determine if there is proper alignment. If there is proper alignment, then the area is immobilized with a cast or some other device until the fracture heals. If the x-ray shows that proper alignment of the bone has not been obtained (the initial treatment has failed) then open reduction and internal fixation would be proper provided the swelling, ecchymosis and blistering are not present. Otherwise, as in this case, the proper method would be to wait a period of time, 4-6 days, for the swelling, ecchymosis and blistering to go away. Petitioner's contention that the swelling had gone down since there had been immobilization of the area with a cast, posterior splint or unna boot and a waiting period is without merit since those devices would not have been used before determining by x-rays that the initial treatment (closed reduction) had failed. The fourth and last question at issue in question 144 which stated: CASE HISTORY 50 A patient presents with a painful left ankle. The pain occurs following ambulation and is relieved by rest. There is minimal periartic- ular atrophy and the joint is slightly warm. X-rays reveal non-uniform joint narrowing, subchondral sclerosis and marginal osteophytes. 144. It can be expected that the patient will favorably respond to treatment but may experience flareups. significant cartilage damage will occur. total joint replacement will be required. total remission can be expected following treatment. Petitioner answered B, significant cartilage damage will occur and Respondent's answer was A, that the patient will favorably respond to treatment but may experience flareups. There were a series of questions preceding this question concerning the patient in Case History 50. The first question asked for a diagnosis which the Petitioner correctly answered as osteoarthritis. The second question concerned advising the patient on treatment which the Petitioner answered correctly by giving instructions on protecting the joint and taking simple analgesics. The third question concerned activity levels such as jogging and climbing steps which Petitioner answered correctly by advising to avoid squatting. However, in selecting B as the answer to question 144 the Petitioner did not consider the suggested treatment and advise given in the previous answers. His reasoning was that he could not assume that the patient would follow his suggested treatment or advise on prevention and activity. Additionally, the Petitioner felt that other factors such as the patient's age, weight, general health, level of activity and occupation that were missing from the case history were necessary to make a proper evaluation of whether the patient would respond favorably to treatment. Respondent admitted that either answer A or B would be correct but he picked B because he knew the disease was progressive and in time would get worse causing significant cartilage damage. Osteoarthritis is a degenerative joint disease that is not uniformly progressive that responds to treatment but cannot be cured. There will be recurring episodes of pain (flareups) triggered by factors such as the weather or a person's activity. Based on the factors in the above case history, there is sufficient evidence to show that the patient will favorably respond to treatment but may experience flareups. It was reasonable and logical for the Respondent to assume that the Petitioner in answering question 14 would consider his preceding answers and assume that the patient would follow the suggested treatment and advice. There is a lack of competent substantial evidence in the record to establish that significant cartilage damage would occur based on the facts given in Case History 50. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1990 Florida Podiatry Examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grade he received on the July 1990, Florida Podiatry Examination. RECOMMENDED this 18th day of September, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2118 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance in Findings of Fact 1 and 4. Adopted in substance in Finding of Fact 4. Rejected as not supported by competent substantial evidence in the record. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Findings of Fact 1 and 2. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. 4.-6. Adopted in substance in Findings of Fact 6, 7, and 8, respectively. 7. Adopted in substance in Findings of Fact 9 and 10. COPIES FURNISHED: Hewitt E. Smith, Esquire P.O. Box 76081 Tampa, FL 33675 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Respondent, Mark N. Dobin (Dobin), was at all times material hereto licensed to practice optometry in the State of Florida, and held license number OP 0001202. Inadequate Eye Examinations On November 5, 1985, Alison Lichtenstein, an investigator employed by the Department of Professional Regulation (DPR), entered Dobin's offices in Margate, Florida. Using the assumed name of Alison Smith, Ms. Lichtenstein, who was wearing glasses at the time, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Lichtenstein failed to include the following minimum proceduresrequired by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire whether Lichtenstein was taking any medication; (b) an external examination; (c) a pupillary examination; (d) visual field testing; and (e) a biomicroscopy. On November 5, 1985, Mary Pfab, a licensed optometrist in the State of Florida, entered Dobin's offices in Margate, Florida. Using the assumed name of Mary Parker, Ms. Pfab, who was wearing contact lenses, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Pfab failed to include the following minimum procedures required by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire of Pfab's personal medical history, her medications, her family medical history, or her family ocular history; (b) a pupillary examination; and (c) visual field testing. An optometrist's failure to perform the minimum procedures required by Rule 21Q-3.007, Florida Administrative Code, can have a profound impact on the results of his examination. Pertinent to this case, the procedures omitted by Dobin were of import because: Many medications mask the symptoms of a number of eye diseases. A failure to ascertain what medications a patient is taking could, therefore, result in the optometrist missing or not checking for certain diseases. A personal medical history is likewise important to an informed examination. Pre-existing injuries and diseases can have a profound impact on an optometrist's findings, and the cause of that finding is important too the ultimate diagnosis and treatment of the patient. The patient's family medical and ocular history is also important to an informed examination. For example, a person with a family history of diabetes, cataracts or glaucoma is more likely to have such disease than one without such family history. Consequently, if alerted by such information, the optometrist could diagnose the presence of such disease and prescribe treatment at a much earlier stage of its development than might ordinarily be the case. A pupillary examination evaluates the nervous system which connects the eye and retina to the brain. A failure to perform such examination could cause the optometrist to overlook the existence of a brain tumor or other forms of nerve damage. Visual field testing is a diagnostic tool used to detect the presence of gross nerve damage, traumatic cataracts, glaucoma, diabetes, and certain peripheral retinal diseases. Absent such test, these diseases might not be detected. In this case, the import of Dobin's failure to perform a visual field test was heightened. Visual field testing and tonometry are two of the three diagnostic procedures utilized to detect glaucoma. Where, as here, tonometry was not performed, the importance of visual field testing is more significant to the early detection of that disease. Biomicroscopy is a diagnostic tool used to detect the presence of bacterial conjunctivitis, corneal ulcers, corneal scars, blepharitis, and some lid injuries. Absent stich test, these diseases or injuries might not be detected. An external examination is important to the detection of skin cancer, skin lesions, blepharitis, and bacterial or allergic conjunctivitis. Absent such examination, these ocular problems might be overlooked. Inadequate Patient Records Contrary to the requirement of Rule 2IQ-3.007, Florida Administrative Code, the patient case record for Ms. Lichtenstein and Ms. Pfab did not reflect whether the following tests were performed or if performed the results: (a) a complete patient history, (b) an external examination, (c) a pupillary examination, (d) a visual field test, (e) an internal examina- tion, (f) a biomicroscopy, and (g) diagnosis and treatment. The inadequacy of Dobin's patient records would adversely affect his ability, and that of a subsequent treating optometrist, in treating these patients. Absent a medical history and the results of the tests performed, an optometrist is severely hampered in his ability to track the progress of diseases, or to detect their onset. Exercising Influence For Financial Gain Petitioner asserts that Dobin, by accepting a fee for a vision analysis that did not comply with the minimum requirements of Rule 2IQ-3.007(1), Florida Administrative Code, violated Section 463.0l6(1)(m), Florida Statutes. That section prohibits: Exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party. Petitioner's proof was not persuasive. While the patients in this case may not have received the minimum examination mandated by law, I am not persuaded that such failure constituted the exercise of influence to exploit a patient contemplated by Section 463.016(1)(m). There was no showing that Dobin recommended unnecessary tests or unnecessary products, or that he otherwise sought to influence their choice of procedures or materials for financial gain. Such being the proof, the Petitioner failed to demonstrate a violation of Section 463.016(1)(m) Unlicensed Practice Of Optometry Petitioner further asserts that Dobin's "association" with Eye-Wear Glasses, Inc., his landlord, violated the provisions of Section 463.0l4(1)(c), Florida Statutes, and Rule 2IQ-3.008, Florida Administrative Code. Section 463.014(1) provides: (c) No optometrist shall engage in the practice of optometry with any organization, corporation, group, or lay individual. This provision shall not prohibit optometrists from employing, or from forming partnerships or professional associations with, optometrists licensed in this state. And, pertinent to this case, Rule 2IQ-3.008 provides: No licensed practitioner shall enter into any agreement which adversely affects the licensed practitioner's exercise of free, independent and unlimited professional judgment and responsibility, or which permits any unlicensed person or entity to practice optometry through the licensed practitioner by controlling and/or offering `optometric services to the public. The professional judgment of a licensed practitioner should be exercised solely for the benefit of his patients and free from any compromising influences and loyalties. The Board will consider the circumstances of the practice including but not limited to, the following factors in determining whether a violation of Section 463.014, F.S., has occurred: Whether the licensed practitioner holds himself out to the public as available to render professional services in any manner which implies that the licensed practitioner is professionally associated with or employed by an entity which itself is not a licensed practitioner. For purposes of this rule "entity" shall refer to any corporation, lay body, organization, individual or commercial or mercantile establishment which is not a licensed practitioner. The term "commercial or mercantile establishment" shall include, but not be limited to, an establishment in which the practice of opticianry is conducted pursuant to Chapter 484. Whether the professional office space occupied by the licensed practitioner is such that it does not clearly and sufficiently indicate to the public that his practice of optometry is independent of, and not associated with the entity. Whether the licensed practitiQner has a telephone listing and number that is separate and distinct from that of the entity or whether the phone is answered in a manner that does not identify his optometric practice or whether the telephone is answered in a way that indicates that the licensed practitioner is professionally associated with or employed by the entity. Whether the entrance to the building or commercial or mercantile area in which the licensed practitioner's practice is located sufficiently identifies that the licensed practitioner is practicing his profession independent of, and not associated with the entity. Whether advertisements, including those placed in a newspaper and/or telephone directory, imply that the licensed practitioner is professionally associated with, or employed by an entity. Whether the licensed practitioner maintains full and total responsibility and control of all files and records relating to patients and the optometric practice, in accordance with Rule 2IQ-3.003. Whether the licensed practitioner has full and complete control and discretion over fees charged to patients for his services and billing methods. Whether the provisions of a lease or space agreement between the licensed practitioner and the entity operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Whether the arrangements for the furnishing of equipment or supplies to the licensed practitioner operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Eye-Wear Glasses, Inc., is owned and operated by two licensed opticians. By a "rental agreement" dated October 12, 1983, Eye-Wear Glasses, Inc., and Dobin entered into an agreement whereby Dobin was sublet space within Eye-Wear Glasses' premises. That "rental agreement" provided: RENTAL AGREEMENT BETWEEN EYEWEAR GLASSES INC. AND DR. MARK N. DOBIN Rent shall be $1.00 per month, and shall continue for a 2 year period with continuing 2 year options. This lease will go into affect on October 17th 1983. The rent of $1.00 per month shall include water, electricity, and air conditioning. Dr. Mark N. Dobin will be responsible to supply all equipment, stationary, and supplies needed to run an Optometric Office. Dr. Mark N. Dobin will have a phone installed at his own expense and his monthly bill along with Yellow Pages advertising c shall be paid by him. Dr. Mark N. Dobin will be allowed to advertise independent of Eyewear Glasses Inc. at his own expense. A key allowing access to the premises shall be given to Dr. Mark N. Dobin. Fees for Services performed by Dr. Mark N. Dobin, will be determined by Dr. Mark N. Dobin and shall be collected independent of those fees from Eyewear Glasses. Being a private entity, Dr. Mark N. Dobin shall have the right to determine his own office hours, days worked and vacation time, but he shall try to coordinate these days with those of Eyewear Glasses Inc. if this is possible. Renter, Dr. Mark N. Dobin, has the option of selling his practice and its contents to another Eye Doctor. This sale may include all records and files of patients belonging to Dr. Mark N. Dobin. At the time of sale, Eyewear Glasses Inc. has the right to renegotiate the lease, but not to alter it in such a way as to make the sale of the practice uninviting. Before the sale is finalized a 3 month trial period may be requested by either party. If Dr. Mark N. Dobin is unable to sell his practice, Eyewear Glasses Inc. has the right of first refusal to purchase his practice or his equipment. If the office is unoccupied for a period of 30 days, Eyewear Glasses Inc. has the option of subleasing the practice to another Eye Doctor, until which time the practice is sold or Dr. Mark N. Dobin returns. Dr. Mark N. Dobin has the right to hire another Eye Doctor to work his office during vacation time, or other times when he is not available. If Eyewear Glasses Inc. is not happy with the performance of said Eye Doctor. it may request that another Doctor be hired by Dr. Mark N. Dobin, but the final decision shall be his. Dr. Mark N. Dobin has the right to hire c an employee at his own expense, to assist in his office. A key to the premises may be given to said employee, but permission must first be granted by Eyewear Glasses inc. If either partner of Eyewear Glasses Inc. decides to sell his share of the corporation to the other, all points of this lease agreement shall remain in affect. If both owners agree to sell their share of the corporation, Dr. Mark N. Dobin shall have the right of first refusal to purchase Eyewear Glasses Inc. and its contents. Eyewear Glasses Inc. agrees to build a partition at its own expense in order to meet Florida State Optometric Board requirements. A Covenant of Restriction with a radius of 5 miles shall go into affect 2 years from the beginning of this lease, and shall last for a period of 3 years from the termination of this lease. Dr. Mark N. Dobin shall not sell eyeglasses or other optical excessories, excluding all items pertaining to the sale and dispensing of contact lenses. The space occupied by Dobin, which consisted of approximately 248 square feet, was located at the rear of the optician's store, and accessible by way of a sliding glass door from the store or through a back glass door from the shopping mall area. Consequently, customers of either business had an unrestricted view and access to the business of either profession. Considering the physical layout of the premises, as well as the view of the premises afforded by Petitioner's exhibit 5, the proof established that Dobin held himself out to the public in a manner that implied he was professionally associated with or employed by Eye-Wear Glasses, Inc. Indeed, the "rental agreement" itself depicts a business association more far reaching than that of landlord and tenant, and served to impair Dobin's exercise of free, independent, and unlimited professional judgment and responsibility. 1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOM)MENDED that Respondent, Mark N. Dobin, be placed on probation for twelve (12) months, and that an administrative fine of $3,000 be imposed upon him. DONE AND ORDERED this 24th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4484 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2. 4. Addressed in paragraph 3. 5-6. Addressed in paragraph 2. 7-9. Addressed in paragraph 4. 10. Addressed in paragraph 5. 11-12. Addressed in paragraph 4. 13-22. Addressed in paragraph 6(a) -(g). 23-24. Addressed in paragraph 7. 25. Addressed in paragraph 8. 26. Addressed in paragraphs 9-10. 27-31. Addressed in paragraphs 11-13. COPIES FURNISHED: Phillip B. Miller, Esquire c Robert D. Newell, Jr., Esquire 102 South Monroe Street Tallahassee, Florida 32301 Mark N. Dobin 7384 West Atlantic Boulevard Margate, Florida 33063 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
