The Issue The issues in this case are framed by the parties' Joint Pre-Hearing Stipulation. Essentially, they are whether, in connection with his care and treatment of two patients, R.B., and D.T., the Respondent, who is an opthalmologist, violated Section 458.331(1)(t) and (m), Fla. Stat. (1993), by: gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; or (m) failure to keep written medical records justifying the course of treatment of the patients.
Findings Of Fact The Respondent, Carlos A. Solorzano, M.D., is licensed to practice medicine in Florida. He holds license ME 0041368. The Respondent practices in the field of opthalmology. He is not Board-certified. Patient R.B. The patient, R.B., a 92 year-old female, was referred to the Respondent and was seen for the first time on February 2, 1988. The Respondent diagnosed chronic uveitis (inflammation) in both eyes, secondary cataracts in both eyes, and secondary glaucoma in the right eye. The Respondent prescribed two medications (inflamase and atropine). When R.B. was next seen by the Respondent on February 11, 1988, the Respondent prescribed a third medication (betagan) and recommended a YAG laser iridotomy on the right eye to relieve high pressure. In performing an iridotomy, the opthalmologist bores a hole in the iris to relieve abnormal pressure in the eye (glaucoma). Sometimes, especially when glaucoma is caused by active uveitis, a patient can be treated effectively by controlling the inflammation solely with medication and later dilating the pupil. If successful, medical treatment obviates the need for surgery. In the case of R.B., medical treatment was not and would not be successful. As a result of chronic uveitis, R.B. had a history of abnormally high pressures in the eye. In addition, and of even more concern, the pressures were subject to "spiking" seriously high pressures. Whereas pressures of 21 mm of Mercury (Hg) are considered high normal, R.B. had readings of 38 mm Hg in both eyes on January, 24, 1988. On her first visit to the Respondent on February 2, 1988, the readings were 30 mm Hg in the right eye and 20 mm Hg in the left eye. On her second visit to the Respondent on February 11, 1988, the readings were 29 mm Hg in the right eye and 19 mm Hg in the left eye. Clearly, the Respondent's recommendation that R.B. have an iridotomy performed on her right eye was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's records indicate that, instead of an iridotomy, the Respondent performed an iridoplasty on R.B. on March 23, 1988. In an iridoplasty, the opthalmologist treats the surface of the iris with laser energy to cause some shrinkage and change of shape in the iris but does not bore a hole through the full thickness of the iris. The Respondent's medical records do not explain why an iridoplasty was performed on March 23, 1988, instead of the recommended iridotomy. The Respondent has no independent recollection of which procedure he performed and can only speculate that, if in iridoplasty was performed, perhaps it was because he was unable to complete the iridotomy and did an iridoplasty instead in preparation for a subsequent iridotomy. In that respect, the Respondent's written medical records were insufficient to justify the course of treatment of the patient. On March 28, 1988, the Respondent saw R.B. again and recommended an iridotomy on the left eye. The patient's left eye pressure reading on that day was 14 mm Hg, well within normal range. Other left eye pressure readings also were within normal range, although closer to high normal: 20 mm Hg on February 2, 1988; and 19 mm Hg on February 11, 1988. But there also was the history of a 38 mm Hg "spike" on January 24, 1988, and the history of abnormally high pressures in the patient's right eye. Despite the normal readings for the left eye, taking all of the pertinent factors into consideration, it was not proven that the Respondent's recommendation of an iridotomy for the left eye was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (A subsequent "spike" 76 mm Hg in April, 1990, further validated the recommendation.) The Respondent performed an iridotomy on R.B.'s left eye on April 20, 1988. The Respondent's medical records do not reflect the absence of cells or flares until an entry on June 6, 1988. The Respondent does not always record what he considers to be "negative findings." "Negative findings" should sometimes be recorded if they are pertinent and necessary, but these "negative findings" are subsumed in the diagnosis of chronic, rather than active, uveitis. Patients undergoing an iridotomy procedure should be seen for follow- up care within one to three days to ensure that the opening is patent, that the symptoms are relieved, and that no secondary inflammation is present. As indicated, the Respondent saw the patient, R.B., on March 28 and on April 25, 1988. The Respondent's records for those visits indicate intraocular pressures, but otherwise the Respondent's written medical records for any follow-up care on those dates were insufficient. (The March 28, 1988, records indicate an evaluation and recommendation for a iridotomies for both eyes but do not address the March 23, 1988, procedure on the right eye. The April 25, 1988, records do not address the April 20, 1988, procedure on the left eye.) The records for both of those visits indicate prescriptions for atropine, betagan, and inflamase. The next visit indicated in the Respondent's records for R.B. was June 6, 1988. At that time, the Respondent recommended a lensectomy and vitrectomy for the left eye, which he performed on August 30, 1988. A lensectomy is the removal of the lens. A lensectomy is indicated under several different circumstances. It is appropriate when a less involved cataract procedure cannot be performed, or when the anterior approach to removing a cataract cannot be utilized. A vitrectomy is the removal of the vitreous, the jelly-like material in the globe of the eye. A vitrectomy also is indicated under various different circumstances, including: biopsy; infection; blood in the eye; inflammation; and retinal repair. In the case of the patient, R.B., there was no improvement in the patient's vision (hand movement, only, in the left eye), despite the use of a strong corticosteroid, a beta blocker, and a strong pupil dilator. The patient continued to suffer from the effects of chronic uveitis. Synequies, or adhesions, continued to prevent fluid from escaping. The patient also had thick cataracts and membranes in the vitreous that were obscuring vision. Under these facts, it was not proven that the lensectomy and vitrectomy on the left eye were below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The lensectomy and vitrectomy were safer than ordinary cataract surgery in this patient and safer than not doing anything. But the Respondent's written medical records were insufficient to justify the course of treatment of the patient. They did not adequately explain the reasons for the Respondent's recommendations. Patient D.T. The patient, D.T., was referred to the Respondent for evaluation regarding a detached retina at the seven o'clock position in the right eye. On September 28, 1988, the Respondent performed a procedure known as cryopexy to reattach the patient's retina. In cryopexy, the opthalmologist applies liquid nitrogen to the area of detachment. The low temperature of the liquid nitrogen (minus 60o centigrade) causes inflammation and scarring. The scarring reattaches the retina. It was the Respondent's responsibility to check the pressure in the liquid nitrogen tank supplied by the hospital facility the Respondent was using. He failed to check the pressure and, unfortunately, it was low. The Respondent attempted the procedure despite the low pressure in the liquid nitrogen tank but was not sure if it would be effective. The Respondent wanted to proceed with a follow-up procedure using a laser to be sure the reattachment succeeded, but the patient declined. In part in order to further facilitate reattachment pending the laser procedure, the Respondent injected air into the eye to serve as an internal tamponade to put pressure on the point of reattachment to hold it in place. (Other reasons for injecting air in the eye were to maintain proper intraocular pressure and to keep fluid away from the point of reattachment for access and visibility during the subsequent laser procedure.) Unfortunately, due to gravity and the inferior position of the retinal detachment, the internal tamponade only would be effective if the patient maintained a face-down position. On follow-up the next day, the patient was maintaining proper position and the laser procedure was scheduled for the following day. But on preop evaluation on September 30, 1988, the patient was found to be in sitting position, and it was not possible to perform the laser procedure. Instead, the Respondent recommended redoing the operation. The patient declined, preferring to "wait a few days." During follow-up evaluation on October 4, 1988, it was determined that the cryopexy had been at least partially successful after all, despite the low liquid nitrogen pressure. Pigment 1+ was seen, indicating inflammation and scarring, and the area of detachment of the retina appeared to be smaller. The macula remained attached. During another evaluation October 7, 1988, it was noted that the macula still remained attached. Although the Respondent urged the patient, D.T., to have the cryopexy procedure on the right eye repeated more quickly, the patient wanted to wait, and the Respondent repeated the procedure on October 14, 1988. It was not proven that the delay in repeating the procedure was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The initial procedure apparently was at least partially successful, and the macula remained attached. In addition, inferior retinal detachments usually do not extend quickly, and it was not proven that there was any urgency in repeating the procedure. The Respondent's medical records do not include any indication that he advised or encouraged the patient not to wait until October 14, 1988, to have the cryopexy procedure repeated, but it was not proven that this omission was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent testified that he saw the patient at her home on several occasions but his medical records make no mention of any such visits. It became apparent from participating in the final hearing (and can be surmised to some extent from the Respondent's "proposed findings of fact") that the Respondent's biggest difficulty in the practice of medicine may be the difficulty he has in communicating (at least in English). It is possible that patients and other physicians perceive incompetence when they do not understand what the Respondent is telling them, whether orally or in writing. His difficulty with written English may contribute to the inadequacy of some of his medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent guilty of violating Section 458.331(1)(m), but not (t), Fla. Stat. (1993); (2) reprimanding him; and (3) imposing a $1,000 administrative fine. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5118 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-20. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted. Subordinate to facts found. (The diagnosis was chronic, not active, uveitis.) Rejected as not proven. (Cells and flares indicate active uveitis.) Accepted. Subordinate to facts found. See 21., above. 24.-26. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to intraocular pressure. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 29.-32. Accepted and incorporated to the extent not subordinate or unnecessary. 33.-35. Accepted and incorporated. 36.-37. Accepted and incorporated. However, there also are other indications. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to "indications"; accepted and incorporated as to "discussion." Accepted and incorporated. Accepted and incorporated as to inadequate medical records; otherwise, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. 42.-44. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. (It was at least partially successful and may have been completely successful, but the Respondent was unsure due to the low pressure and wanted to repeat the procedure to make sure.) Accepted. Subordinate to facts found. (The medical records were written before subsequent follow-up evaluation showed successful cryopexy.) 47.-48. Accepted and incorporated. (As to 48., there also were other reasons for it.) Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that it was "necessary due to insufficient freezing." (The Respondent thought it was appropriate due to questions he had about the efficacy of the cryopexy and for other reasons.) Accepted but subordinate and unnecessary. (The Respondent did not perform a pneumatic retinopexy.) Rejected as not proven that it would not be "viable." Accepted that it was not appropriate, but subordinate and unnecessary. See 50., above. Also, rejected as not proven that "the patient could not be positioned to cause the desired effect." Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that "the Respondent was advised." (The Respondent made the determination.) Otherwise, accepted and incorporated. 53.-54. Accepted and incorporated. Accepted but subordinate and unnecessary. Rejected as as not proven and as contrary to facts found and to the greater weight of the evidence. 57.-58. Accepted and incorporated. Accepted but subordinate and unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. See 45., above. 61.-65. Accepted but subordinate and unnecessary. 66.-67. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Respondent's Proposed Findings of Fact. (The Respondent's "proposed findings of fact" were presented in an unorthodox fashion that makes ruling difficult. He introduced a subject on a sheet of paper, sometimes commented on the subject, and attached copies of medical records in evidence that relate to the subject. These rulings are restricted to the Respondent's comments and attempt to follow the format chosen by the Respondent. No rulings are made on the attached copies of medical records as they are accepted but subordinate.) FACTS RELATED TO PATIENT #1, RB LASER PROCEDURES. Accepted and incorporated to the extent not subordinate or unnecessary. REGARDING HIGH INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) REGARDING A VERY HIGH SECOND EPISODE OF INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) POINT REGARDING THE APPOINTMENTS. As to R.B., accepted but subordinate and unnecessary. As to the other patients, rejected as not supported by any evidence. PATIENT RB DIDN'T HAVE ACTIVE UVEITIS . . .. First sentence, accepted and incorporated. Second sentence (regarding slit lamp), accepted but subordinate and unnecessary. (AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) THE SURGICAL PROCEDURE LENSECTOMY VITRECTOMIE [sic]. Generally accepted and incorporated to the extent not subordinate or unnecessary. REGARDING SLIT LAMP EXAMINATIONS. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) FACTS RELATED [TO] PATIENT #2, DT PAGE# 5. Accepted and incorporated. PAGE# 6. Accepted and incorporated. PAGE# 7. Accepted (assuming "denied to" means "refused to") but largely subordinate and unnecessary. Only "home visits" comments are incorporated. PAGE# 8. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the allegation that the proliferative vitreous retinopathy occurred between the two surgeries.) PAGE# 9. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 10. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 11. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that, after the second surgery, the Respondent did not advise the patient concerning alternatives such as pars plana vitrectomies.) PAGE# 12. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent went on vacation in October, 1988.) COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre - Legal A Tallahassee, Florida 32399-0792 Carlos A. Solorzano, M.D., pro se 7211 North Dale Mabry Highway, #101 Tampa, Florida 33614 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact At all times material to this proceeding, Respondent was and remains a licensed optometrist in the State of Florida, having been issued License No. 000595. Respondent's present address is 4636 North Dale Mabry, #619, Tampa, Florida 33614. The Respondent, prior to relocating his office to Tampa, Florida, practiced optometry in Tallahassee, Florida, in an office adjacent to the Pearle Vision Center in the Governor's Square Mall. He closed that office the last week of December, 1980. Treatment of Wendell Harrison The Respondent first saw Wendell Harrison on October 11, 1980. At that time, Respondent was offering a special of $59.00 for three visits which included an examination and prescription, contact lenses, and the fitting of those lenses. The first of the three visits was the initial examination and prescription. The second visit occurred after the patients received their lenses, and the third visit was a follow-up visit for the purpose of ensuring that the lenses were fitted properly and there were no problems. On October 11, 1980, Mr. Harrison was examined by Dr. Hunter and given a prescription for contact lenses. On that date, Mr. Harrison paid the Respondent $40.00 of the $59.00 total charge. On October 22, 1980, Mr. Harrison received his contact lenses and returned to the Respondent's office for his second visit. During that visit, he was shown how to insert the lenses and also saw a film on how to care for the lenses. At this time, he paid the $19.00 balance of the total charge of $59.00. Subsequent to the second visit, Mr. Harrison experienced blurred vision and pain, especially in his left eye. He returned to Dr. Hunter and informed him of the blurred vision and pain. Dr. Hunter made no examination of Mr. Harrison's eyes or the lenses and informed him the lenses would tighten up and that he should continue to wear them. Mr. Harrison continued to have problems and returned to Dr. Hunter's office the first week of January, 1981. The office was closed. Mr. Harrison did not recall seeing a sign in the window or door of the closed office, but was informed by someone employed at the Pearle Vision Center next door that Dr. Hunter had left and that a Dr. Ian Field was handling problems with Dr. Hunter's patients. Mr. Harrison then made an appointment to see Dr. Field. After an examination, Dr. Field told Mr. Harrison not to put the lenses back into his eyes and not to use them. Dr. Field wrote a prescription for new lenses and refitted Mr. Harrison with the new lenses. Mr. Harrison experienced only minor problems in getting used to the new lenses and had no problem with blurred vision with the new lenses. The prescription of the lenses prescribed for Wendell Harrison by Dr. Hunter was improper in that the lenses corrected the vision in his right eye to only 20/40 which is the minimum for driving a vehicle in Florida. The left eye was corrected only to 20/40 and three additional letters on the next line of the chart. The lenses were also improperly fitted to Mr. Harrison's eyes, and as a result, moved around too much and would ride up underneath the upper lids of his eyes. By letter dated February 3, 1981 (see Petitioner's Exhibit 3), Mr. Harrison contacted Dr. Hunter and requested a full refund of his $59.00 fee. Dr. Hunter responded by letter dated February 9, 1981 (see Petitioner's Exhibit 4) and refunded with that letter $9.00 of the $59.00 paid by Mr. Harrison. Treatment of Maureen Sue Woodward Sometime in the Fall of 1980, Maureen Sue Woodward visited the office of the Respondent in Governor's Square Mall for the purpose of an examination and fitting of contact lenses. On the first visit, Ms. Woodward was examined by Dr. Hunter and was given a prescription for contact lenses. She took the prescription next door to Pearle Vision Center to have the prescription filled. Ms. Woodward, on the first visit, was quoted a price of $75.00 for three visits and this is the amount she paid Dr. Hunter. The three visits were to consist of first, an examination and prescription, secondly, the actual insertion and instruction on care of the lenses, and lastly, a follow-up visit to make certain there were no problems. After she received her contact lenses, she returned to Dr. Hunter's office for instruction on how to insert them and care for them. She watched a film about the cleaning of the lenses. Following the second visit, she wore the contacts just as she had been instructed to wear them and began to experience problems. Her eyes were bloodshot, burning, and tearing as a result of the contact lenses. Ms. Woodward returned to Dr. Hunter's office a third time and explained the problems she was experiencing. Dr. Hunter performed no examination of her eyes or the lenses but told her she was not cleaning them properly. She returned home and continued to clean the lenses as prescribed in the written instructions she had been given by Dr. Hunter and continued to have the same problems of bloodshot eyes, tearing, and burning. Dr. Hunter had told her to come back if she had any further problems. When she returned to Dr. Hunter's office in early January, 1981, the office was closed and there was a note on the door of the closed office referring patients to Dr. Ian Field in the Tallahassee Mall. Her third visit with Dr. Hunter had been approximately a week earlier and he had not mentioned the possibility that he might be leaving Tallahassee. The only information given by the note on the door was that Dr. Hunter's patients were referred to Dr. Field. On January 7, 1981, Mrs. Woodward was seen by Dr. Ian Field. The contact lenses which had been prescribed by the Respondent had an improper prescription. Prescriptions for contact lenses are in plus or minus. A prescription at zero has no prescription at all and is clear glass. A nearsighted person needs something for distance and requires a minus prescription and a farsighted person requires a plus prescription. The power of both lenses prescribed by Dr. Hunter for Mrs. Woodward were more plus than they should have been. When Mrs. Woodward saw Dr. Field on January 7, 1981, she was continuing to wear the contacts prescribed by Dr. Hunter. She was also experiencing blurred vision and bloodshot eyes. Her right eye felt scratchy. Treatment of Barbara Magnusson Stathos The Respondent examined Barbara Magnusson Stathos and prescribed contact lenses sometime prior to September 29, 1980. The agreed fee was $59.00 for three visits and Ms. Stathos had her second visit with Dr. Hunter on September 29, 1980, after picking up her contacts. After receiving her contacts Ms. Stathos experienced problems and called Dr. Hunter's office. She spoke with Dr. Hunter at that time. She continued to have problems and when she returned to Dr. Hunter's office, he had left the area. Barbara Stathos was then seen as a patient by Dr. Walter Hathaway, an optometrist, on January l7,1981. She was using a liquid chemical method of disinfectant for the lenses Dr. Hunter had prescribed for her. Thirty to forty percent of the population has an allergic reaction to these particular chemical disinfectants. There were deposits and coatings on the lenses which had been prescribed for Barbara Stathos by Dr. Hunter. Dr. Hathaway replaced her lenses and switched her to a heat disinfectant method. This solved her problem. The problem of coatings and deposits on her lenses would not have corrected itself. Such a condition would have required an optometrist to correct it. Treatment of Marianne Topjian On December l2, 1980, Marianne Topjian was given a prescription by Dr. Hunter for contact lenses. Subsequent to December 12, 1980, she received her contact lenses. On January 8, 1981, Marianne Topjian saw Dr. Ian Field. She was having problems with the contact lenses prescribed by Dr. Hunter. These lenses had an improper prescription in that they did not correct her vision for close work. The lenses should correct for distance as well as close work. Standard of Care and Requirement for Due Notice The standard of care for optometrists in the Tallahassee community in 1980 and 1981 required proper follow- up care in order to ensure that contact lenses fit properly, that the prescription was proper, and that the patient was not experiencing any problems requiring correction by the optometrist. The follow-up care includes necessary examinations to determine the source of any problems being experienced by the patient. Some degree of follow-up care is required with every patient who is fitted with contact lenses by an optometrist. The standard of care in the Tallahassee community, as well as the nation, requires that when a physician leaves his practice and relocates to another community, he must give notice to his patients and make certain that patients under his active care are taken care of by another optometrist. The relocating optometrist must also make arrangements to make the records of his patients available to them. Neither Wendell Harrison nor Maureen Woodward were given notice by the Respondent that he was leaving Tallahassee and relocating elsewhere. Wendell Harrison and Maureen Woodward were under his active care at the time Dr. Hunter left Tallahassee, and no proper arrangements were made by Dr. Hunter for the follow-up care for the problems that these two persons had complained about. Dr. Hunter saw Maureen Woodward approximately one week prior to his departure, and he did not inform her that he was considering leaving Tallahassee. Prior to leaving Tallahassee, the only arrangements made by Dr. Hunter involved one phone call with a Dr. Orb who planned to move into Dr. Hunter's office in Governor's Square Mall. Dr. Orb agreed generally to take care of any of Dr. Hunter's patients, but no specific financial arrangement was made for such treatment and no specific patients experiencing current problems were discussed. Dr. Hunter did not know when Dr. Orb would be moving into the office, and there was no evidence that he called Dr. Orb in Tallahassee after his departure to determine if Dr. Orb was, in fact, caring for his patients. No arrangement at all had been made with Dr. Ian Field. The Respondent was negligent and fell below the standard of care in the community by failing to provide proper follow-up care to Wendell Harrison. The Respondent specifically failed to examine Mr. Harrison and take appropriate steps to determine the cause of the blurred vision and discomfort complained of by Mr. Harrison on his third visit Having been made aware by an active patient that the patient was having ongoing continuous problems with the new contacts, the Respondent failed to make arrangements upon his departure from Tallahassee to ensure that Mr. Harrison would receive the necessary care to correct his problems, if they continued. As a result of failing to provide proper follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Mr. Harrison. The Respondent was negligent and fell below the standard of care in the community in his treatment of Maureen Sue Woodward by failing to provide her with proper follow-up care after she was fitted with contact lenses by the Respondent. After Maureen Woodward complained of bloodshot eyes, burning and tearing, the Respondent did not perform an examination of her eyes or contact lenses in order to determine the cause of these problems. Having been made aware of these problems, he did not make proper arrangements upon his departure from Tallahassee to ensure that Ms. Woodward would receive the necessary follow- up care to correct these problems in the event that the problems continued. By failing to perform the appropriate examinations and to provide the appropriate follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Maureen Woodward. There was insufficient evidence to show that the Respondent breached any standard of care in the community with regard to his treatment of Marianne Topjian and Barbara Magnusson Stathos. Neither of these patients testified in the administrative proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of Counts 6, 8, 9, and 11 of the First Amended Administrative Complaint and that he be required to pay an administrative fine of $1,000. It is further recommended that the Respondent be placed on probation for a period of six (6) months subject to such conditions as the Board deems appropriate to ensure that the Respondent is completely familiar with and follows the requirements for proper follow-up care with patients being fitted with contact lenses. It is recommended that Counts 1 through 5, 7, 10, and 12 through 16 of the Administrative Complaint be dismissed. DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Daniels, Esquire 127 East Park Avenue Tallahassee, Florida 32302 Ms. Mildred Gardner Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether the Respondent is subject to discipline for engaging in practice beyond the scope of opticianry.
Findings Of Fact At all times material to this action, Dory Gomez-De Rosas has been a licensed optician in the State of Florida, holding License DO 0001724. She was an owner of and employed as a licensed optician at Care Optics, located at 1057 North Homestead Boulevard, Homestead, Florida. On May 16, 1989, Patient #1 went to Care Optics to have her eyes examined after having made an appointment about a week earlier. A complete eye examination was performed on Patient #1 by the only woman who was present in the office. That examination included a glaucoma test. Patient #1 intended to buy her glasses elsewhere. She paid $30 for the examination. Patient #1 received a business card from the woman who performed her eye examination which contained measurements. Those measurements were findings of the refractive indices for Patient #1, which would be used in making eye glasses. The information provided on the back of the card, however, was incomplete. The information was not written on a prescription form, as would an ordinary prescription nor was it signed by anyone. A prescription must be signed by an optometrist or opthalmologist. Patient #1 took the card to her regular optician, Mr. Stellabotte. Because he could not prepare glasses from the information on the back of the card, he attempted to contact the opthalmologist or optometrist who seemingly had prescibed the lenses for Patient #1 at Care Optics. There was no opthalmologist or optometrist at Care Optics when Mr. Stellabotte called. The Department delivered a subpoena duces tecum to Care Optics to obtain the records of Patient #1, but Care Optics was unable to locate any records for Patient #1, and provided an affidavit to that effect. Patient #1 returned to Care Optics and received a refund of the $30 she had paid. She then was examined by another optometrist in Homestead and had the prescription filled by Mr. Stellabotte. Patient #1 identified the Respondent as the woman who performed the total eye examination and glaucoma test on her at Care Optic after seeing a photocopy of the examination photograph which Respondent had provided to the Board as part of her licensure application as an optician. After viewing the Respondent at the hearing, it is obvious that the licensure photograph which Patient #1 identified is a photograph of the Respondent. The Respondent engaged in the diagnosis of the human eyes by performing a glaucoma test on Patient #1, and by determining the refractive power for Patient #1's eyes during the examination which the Respondent performed at the office of Care Optics on May 16, 1989. She also was guilty of deceit by leading Patient #1 to believe that she was an optometrist who was competent to examine her eyes. The Respondent attempted to prescribe lenses for Patient #1 by providing the Respondent with a business card which contained on its back her findings of refractive powers for correction of Patient #1's eyes. This is not an ordinary way to provide a prescription for lenses.
Recommendation It is recommended that a Final Order be entered by the Board finding the Respondent guilty of the violation of Sections 484.013(3), Florida Statutes, and 484.014(1)(f) and (m), Florida Statutes, that a fine of $1,750.00 should be imposed; that the Respondent should be suspended from the practice of opticianry for a period of 90 days, and should be placed on probation for a period of one year. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of January, 1991. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4970 Rulings on findings proposed by the Department: All findings by the Department have been adopted, although they have been edited in the findings of fact made here. Rulings on findings proposed by the Respondent: 1 and 2. Adopted in Finding 1. Rejected. The photograph was sufficiently identified as that of the Respondent, and could be readily determined to be a photograph of the Respondent after seeing the Respondent at the hearing. See, Finding 6. Rejected as unnecessary. The identification by Patient #1 of the Respondent was sufficient. The photocopy of the photograph in the Department's files was sufficient for use by the patient in identifying the Respondent. Rejected as insufficiently persuasive. Patient #1 was able to recall, in a general fashion, the test given to her by the Respondent. They were not the type of tests which an optician could perform. Patient #1's testimony has been accepted. See, Finding 4. Patient #1 obviously went to Care Optics to obtain a prescription, since she always intended to buy her glasses from Mr. Stellabotte. Accepted in Finding 3. The information written on the back of the card did not constitute a prescription, but it was given to Patient #1 by the Respondent at Care Optic. Rejected. The testimony of Mr. Stellabotte as to the nature of the card he received from the Respondent is not fully accepted. The card which Patient #1 received from the Respondent is exhibit #3, and any testimony to the contrary by Mr. Stellabotte is the result of imperfect recollection. Rejected as unnecessary. The identification of the photograph of the Respondent from the Department's licensure files adequately identified the Respondent as the person who performed the eye examination. It was not necessary for the Department to produce any handwriting analysis. The testimony of Patient #1 is sufficient on this point. Rejected as argument. The testimony of Patient #1 identifying the Respondent is sufficient. Rejected as unnecessary. Rejected as inconsistent with the testimony of Patient #1. She had her eyes examined. The information she received from the Respondent was not derived from a mechanical analysis of the glasses she then had. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Garfield & Associates 3500 North State Road 7, Suite 333 Fort Lauderdale, Florida 33319 LouElla Cook, Executive Director Department of Professional Regulation Board of Opticianry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This cause arose as an action pursuant to Section 120.56(2), Florida Statutes, challenging the validity of the amendment to Rule 59U-16.002(2), Florida Administrative Code, proposed and published by the Board of Opticianry on February 14, 1997. The issues are: Do Petitioners have standing to bring this rule challenge? Is the following proposed amendment of Rule 59U- 16.002(2), Florida Administrative Code, an invalid exercise of delegated legislative authority, pursuant to Sections 120.52(8)(c) and (8)(e), Florida Statutes? A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. (Amended language underlined) Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?
Findings Of Fact All persons seeking to be licensed as opticians in Florida must first pass a minimal qualifications licensure examination. Before being qualified to sit for this examination, one of the following courses of preparation provided in Section 484.007, Florida Statutes, must be met. In relevant part, this section provides that one must have (1) received an associate degree, or its equivalent, in Opticianry from an accredited educational institution; (2) be an individual who is licensed to practice the profession of Opticianry in another state, territory, or jurisdiction, who has actively practiced for more than three years; or (3) come from a state or jurisdiction which is not licensed and have actively practiced in that state, territory, or jurisdiction for more than five years immediately preceding application; or (4) be an individual who has completed an apprentice program consisting of 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the law of this state. Respondent Board of Opticianry published on February 14, 1997 a proposed change to Rule 59U-16.002(2), Florida Administrative Code, as set out below. The underlined language is the only substantive change: 59U-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: No change. A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. Specific Authority - 484.005 F.S. Law Implemented - 484.007(1)(d)4. F.S. The parties' Amended Prehearing Stipulation agreed that, Petitioners did not request a public hearing pursuant to the Florida Administrative Weekly notice. A Notice of Additional Public Hearing scheduled for May 16, 1997, was published on April 18, 1997, Volume 23, No. 16, Florida Administrative Weekly. At that hearing, the Board of Opticianry discussed and approved an amendment to proposed amendment to Rule 59U- 16.002. At formal hearing, counsel for the Board represented that the Board had voted to amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out of state prior to passing the Florida Opticianry licensure examination from acting as sponsors of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until a Final Order is entered on the instant challenge. The Board's position was that this vote did not constitute a stipulation of invalidity, arbitrariness, capriciousness, or overreaching its statutory authority. According to the Board, this representation was made only because the Board would not be putting on evidence to support certain portions of the rule language, as published. Nonetheless, Sam Jones, licensed optician and Board member, testified, on behalf of the Board, that new Florida licensees from out of state could not properly sponsor apprentices for at least one year because they "need a little more exposure" to Florida laws and rules before teaching others and because some other states have no licensure criteria at all and no continuing education requirements. The Petition challenges the ability of the Board to require that opticians be licensed for at least one year prior to serving as apprentice sponsors, alleging that the Board lacks statutory authority to promulgate such a rule and that the proposed change is arbitrary and capricious and not based on appropriate factual or legal justification. Petitioner Lenscrafters, Inc. is a corporation that does business in the State of Florida, offering optical services and goods to the public. Lenscrafters hires employees to work as opticians, as well as hiring other unlicensed store employees. Petitioner Sanjiv Matta is Lenscrafters' Regional Trainer of Operations and apparently Lenscrafters' primary Florida employment recruiter. He also locates coaches for Lenscrafters' training programs. He has been a licensed optician in Florida for more than one year. He does not currently sponsor an apprentice. Lenscrafters and Mr. Matta allege that they will be substantially affected because the proposed rule amendment will reduce the number of available sponsors, which will in turn reduce the number of apprentices, which will in turn reduce the number of available employees now and the number of available licensed opticians in the future. As a subset of this alleged chain of unavailability of sponsors, apprentices, and employees generally, Petitioners claim great difficulty will arise in attempting to coordinate apprentice work hours with sponsor work hours. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores. Approximately 25 of the 200 opticians employed by Lenscrafters in Florida have been licensed for less than one year. These 25 were among the 60 new employees hired by Lenscrafters last year. Some of the licensed opticians Lenscrafters hires unilaterally elect to serve as sponsors to other employees who would like to obtain their opticianry license by completing an apprenticeship program. However, according to Mr. Matta, it would not be "integrity based" for Lenscrafters to urge or encourage optician employees to take on sponsorship. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ. Although Lenscrafters provides programs to help all its employees, including apprentices, achieve expertise in fitting and adjusting eyeglasses and provides situational training, equipment training, training tests, performance tests, and lending libraries, it has no specific apprenticeship program, as such, in place. Some of Lenscrafters' programs assist apprentices in attaining credit hours towards licensure. Some supplement the apprentice program requirements. The primary purpose of Lenscrafters' programs is to educate and train its employees for servicing its customers. The ultimate testimony of Mr. Matta that there currently are three opticians employed by Lenscrafters who have been licensed in Florida for less than one year and who are also currently serving as sponsors was anecdotal at best and at worst was speculative and self-contradictory of prior testimony. Lenscrafters currently has 66 apprentices in its employ in Florida. Pursuant to Board rules, each sponsor may oversee two apprentices and any apprentice may have both a primary and a secondary sponsor. Credit hours in the apprentice program are only earned when the apprentice works under a sponsor's supervision. Board rules would permit Lenscrafters' 200 opticians to sponsor 400 apprentices if each licensee had two apprentices. The proposed change in the rule would allow 175 Lenscrafters' opticians to sponsor 350 apprentices. Simple mathematics shows that Lenscrafters has between 33 and 66 optician employees who serve as apprentice sponsors, primary or secondary. Clearly, Lenscrafters currently employs many more non-sponsors than sponsors. Section 484.011, Florida Statutes, allows any employee of an optician to perform any of the functions an optician performs, as long as the acts are performed under the direct supervision of the optician. Lenscrafters allows apprentices to perform more tasks than other unlicensed employees. Lenscrafters considers apprentices to have greater expertise, employee commitment, and career commitment than other unlicensed employees. Lenscrafters pays apprentices more than other unlicensed employees. Lenscrafters and Mr. Matta believe that apprentices who have worked in Lenscrafters' stores and trained on Lenscrafters' equipment will eventually provide a pool of trained opticians for hire or promotion. However, Lenscrafters submitted no statistical data to confirm this "belief" expressed by Mr. Matta, and based on the ratio of available sponsors to apprentices which was developed at formal hearing, this "belief" constitutes pure speculation. It could be just as beneficial for Lenscrafters to train non-apprentices at a lower salary. Intervenor Odette Gayoso has been involved in opticianry for 15 years. She has an Associate of Arts (AA) degree in Optical Science and has been licensed as an optician in Puerto Rico since 1991. Ms. Gayoso is employed as an optician by Lenscrafters. She has been a licensed optician in Florida since December 1996. Therefore, at the time of formal hearing, she had been Florida- licensed for less than one year. Under the proposed rule amendment, she would be unable to act as a sponsor for five more months. Ms. Gayoso does not sponsor an apprentice currently, although the current rule permits her to do so. She has never applied to be a sponsor. No apprentice currently wants her as a sponsor. In the past, two Lenscrafters employees needed sponsors, but both left Lenscrafters' employ before any agreements concerning sponsorship were reached. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing. Mr. Matta and Ms. Gayoso testified that they recruit for Lenscrafters. Ms. Gayoso is an assistant retail manager in a single store. Mr. Matta recruits state-wide. Only Mr. Matta testified that, in his experience, there is a shortage of qualified opticians available to be hired. Only Mr. Matta testified that due to the Board's rule requirement of direct supervision it was difficult for him to match apprentices' work hours with those of their sponsors. Ms. Gayoso did not corroborate Mr. Matta's perception that it is difficult to match apprentices' work hours with those of their sponsors. Although she could see how that could be, it apparently was not a problem in her store where the optician/manager sponsored two apprentices and where another optician who had been employed less than 90 days was prohibited by Lenscrafters from acting as a sponsor. The fact that Lenscrafters prohibits some of its licensed opticians from sponsoring apprentices undermines Lenscrafters' position that the proposed rule change alone would undermine apprentices locating willing sponsors. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment. The Board office receives approximately 86 calls about the apprenticeship program each month. The Board has never received a call concerning a prospective apprentice's inability to find a sponsor. There are currently approximately 2,500 actively licensed opticians in Florida. Of these 2,500 licensees, 174 were licensed last year. This number of annual new licensees has stayed relatively stable for many years. Of 544 current apprentices in Florida, only 27 currently have sponsors of less than one year licensure. The statistics show that many more potential sponsors are available both state-wide and within Lenscrafters' Florida operation than there are those who want to be apprentices. Under the current rule, only those licensees who are currently under disciplinary action are precluded from being sponsors. Under the proposed rule, and excluding any disciplinary concerns, only the 174 new admittees could not be sponsors for one year. A year later, those 174 could become sponsors. So in effect, the only licensees who could not be sponsors each year are the newest licensees, while each year the total number of potential sponsors grows respectively. Of course, the number of eligible physicians and optometrists who could also serve as sponsors would not fall below the current number and would continue to grow respectively year by year. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year. Approximately half of the successful opticianry licensure examinees come from the AA program, and half come from the apprentice program. There is a 90 percent first time pass rate on the examination. The number of apprentice program examinees who fail on both the initial examination and "retake" examinations is higher than for AA degree holders. Since 1991, the Board has been concerned that the apprenticeship route has not been adequately educating future opticians and ensuring the safety of their public practice after licensure even if they were being adequately prepared to pass the standardized minimal qualifications examination. The Board consulted no empirical data for formulating its rule as published, but it held between nine and 12 Board meetings which included discussions on upgrading the apprenticeship program. Board members reported information from nationally recognized professional associations and reviewed a national trend whereby more states are requiring licensure and more states are phasing out apprenticeship programs. Some Board members took the minimum qualifications licensure examination so that they could understand what was involved and how the examination could be improved and report back to the Board. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted. These Board meetings were open to the public and solicited public input. Some were referred to as "workshops," although they might not meet the generally understood Chapter 120, Florida Statutes, definition of "workshop." In 1996, a bill to amend Chapter 484, Florida Statutes, so as to require optician licensees to have three years of licensure before becoming sponsors did not pass into law. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination. Sam Jones was one of the Board members who retook and passed the current licensure examination. On behalf of the Board, he stated that the teaching of how to pass the licensure examination did not equate with teaching the practice of opticianry. In drafting the rule challenged herein to apply to all new optician licensees regardless of which of the four alternative routes they had taken to licensure, the Board viewed the new one-year requirement as constituting an internship akin to the internship required of other health care professionals. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor. In not applying the one-year requirement to physicians and optometrists, but only to opticians, the Board considered that licensed physicians and optometrists already had clinical experience in excess of licensed opticians. The parties stipulated that the Board is authorized to make such rules as are necessary to protect the health, safety, and welfare of the public as it relates to the practice of opticianry and is authorized, "to establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the Board."
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 in this case is whether Petitioner is entitled to receive a passing grade on her optometry examination.
Findings Of Fact Petitioner took the optometry licensure examination on September 22-24, 1991. Following review of her initial scores, Respondent informed her by notice dated February 22, 1991, that she earned 100 points on Florida law and rules, which was a passing grade; 52.5 points on pharmacology and ocular diseases, which was below the minimum passing grade of 70; and 77 points on clinical, which was below the minimum passing grade of 80. Petitioner challenged her grades on the pharmacology and ocular diseases and clinical portions of the examination. However, at the beginning of the hearing, shedropped her challenge to the pharmacology and ocular diseases portion of the examination. The clinical portion of the examination is divided into two sections. In the first section, the applicant sees a "patient." Two examiners watch and listen as the applicant examines the "patient," who is unknown to the applicant and has been prepared with certain information. The applicant is graded under various areas within the broad categories of case history, visual acuity, pupillary exam, confrontation visual fields, and extra-ocular muscle balance assessment. In the second section, the applicant brings with him to the test site his own "patient." Two examiners, who are different from the examiners for section one, evaluate the applicant's ability to use various types of clinical equipment on his "patient." In the first section, Petitioner challenged the grades that she received for Questions 6, 8-10, and 11, which are all worth two points except for Question 10. Question 10 is worth four points. In the second section, Petitioner challenged the grades that she received for Questions 1-4, which are all worth five points, except for Question 4. Question 4 is worth four points. Any combination of additional points adding up to two or more would give Petitioner a passing grade on the pharmacology and ocular disease portion of the examination. As noted below, Petitioner received partial credit for certainanswers. Each of the four examiners completed a scoresheet while grading Petitioner. When no or partial credit was awarded, the examiner would write comments explaining what the problem was. Testifying for Respondent at the hearing, a licensed optometrist, who was one of the examiners of Petitioner for section two, explained adequately each of the scores awarded Petitioner for each of the challenged questions. He established that the equipment was carefully calibrated prior to each test session and for each individual applicant. A psychometrician employed by Respondent also testified that she had analyzed the variance of the scores among the examiners, in terms of overall scores for all applicants, and found no variances tending to discredit the grades. The challenged questions and clinical procedures provided a reliable measure of an applicant's relevant ability, knowledge, and skill. Petitioner's grades were a fair evaluation of her performance on the challenged questions.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Optometry enter a final order dismissing Petitioner's challenge to her scores in pharmacology and ocular diseases and clinical portions of the September, 1990, optometry licensure examination. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792 Chidiebere Ekenna-Kalu P.O. Box 621507 Orlando, FL 32862-1507 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792
Findings Of Fact At all times material to this proceeding, Respondent, Antonio R. Gasset, M.D. (Dr. Gasset), is and has been a licensed physician in the State of Florida. His license number is ME 0015074. Dr. Gasset specializes in opthamology. Petitioner, Agency for Health Care Administration (AHCA), is the State agency charged with regulating the practice of medicine pursuant to Section 20.165, and Chapters 455 and 458, Florida Statutes. In April 1986, Dr. Nelvis Velazquez, worked with Dr. Gasset at the Miami Eye Institute, Inc., which was owned and operated by Dr. Gasset and his immediate family. On April 14, 1986, Dr. Velazquez saw Patient #1 who was complaining of not seeing well. She performed an eye exam which consisted of checking his vision, checking his eye pressure, and dilating his pupils. She diagnosed his problem as cataracts. On April 23, 1986, she performed cataract surgery on Patient #1's right eye. She saw him again on April 24, 25, and May 2 and removed the stitches on May 16. On June 6, 1986, Dr. Velazquez did a slit lamp examination and a fundus exam on Patient #1. On July 18, Patient #1 saw Dr. Velazquez, complaining that his eye lids were coming down so far that they interfered with his vision. She examined his eyes and determined how much the lids were interfering with his vision. On September 26, she did the pre-op for lid surgery. On October 8, she performed lid surgery and saw Patient #1 for post-op on October 9. Dr. Velazquez removed the stitches on October 13. On October 27 she again saw Patient #1 and noted the wrinkling of a membrane which is left behind after cataract surgery. On October 31, she performed a yag laser capsulotomy to remove the membrane. Patient #1 returned to the Miami Eye Institute on November 7 and was seen by Dr. Gasset. A slit lamp eye examination was performed. He noted a cataract in the left eye, which was the same diagnosis made by Dr. Velazquez on Patient #1's initial visit to the Miami Eye Institute. On December 19, Dr. Gasset saw Patient #1 for a routine checkup after laser treatment. Patient #1 was complaining of a floater. A slit lamp examination was performed. Patient #1 did not appear at the Miami Eye Institute again until July 14, 1987, at which time he was seen by Dr. Velazquez. His vision had decreased. Dr. Velazquez performed a vision test, a slit lamp examination, and dilated his eyes. On July 21, Patient #1 had an infection in his eyelid. On August 4, he was seen again but his vision was 20/40 with no explanation for the decrease in the vision. Dr. Velazquez told Patient #1 to return, which he did on August 11. He still had an eyelid infection, and Dr. Velazquez drained the lid. On August 25, 1987, Patient #1 came in for a fluorescein angiogram. As a result of the test, Dr. Velazquez diagnosed a macular edema. On September 1, she performed a slit lamp examination and a vision test, injected a cortiocosteroid, and placed him on Pred Forte, cortiocosteriod drops, for the macular edema. On September 15, Dr. Velazquez gave Patient #1 another injection and told him to continue with the Pred Forte drops. He was again seen on September 29 at which time his vision had improved a little. Dr. Velazquez again told him to continue with the Pred Forte. Based on financial and operational disagreements, Dr. Velazquez terminated her working relationship with Dr. Gasset on October 9, 1987. On October 23, 1987, Patient #1 returned to the Miami Eye Institute and was seen by Dr. Gasset. The patient complained of decreased vision. Dr. Gasset performed a slit lamp examination. Patient #1's next visit to the Miami Eye Institute was on May 13, 1988, when he was seen by Dr. Gasset. The patient complained of poor night vision. He was given a slit lamp examination and a pressure check and was told to return in six months. On October 10, 1989, Patient #1 came to Dr. Gasset for a routine checkup. A slit lamp examination was performed as well as a pressure check. The patient's visual acuity was 20/25 OD and 20/60, left eye. Patient #1's next visit to Dr. Gasset was on August 28, 1990. Patient #1 came to the office complaining that he had lost his reading glasses. Having judged the credibility of Patient #1, I find that Patient #1 did not tell Dr. Gasset that he was seeing "a black ball" in his eye or in any way indicate that he was experiencing floaters. Based on Patient #1's complaint, Dr. Gasset performed a pressure check, noted a cataract on the left eye, and wrote "status quo" on the patient's chart. Patient #1's vision was 20/20 minus in his right eye and 20/60 minus in his left eye. Dr. Gasset did not dilate Patient #1's eyes during his examination. On the same date, Dr. Gasset prescribed glasses for Patient #1, and Patient #1 obtained eyeglasses from the optical department at the Miami Eye Institute. Dr. Gasset did not dilate Patient #1's eyes from October 23, 1987, through August 28, 1990. On September 17, 1990, Patient #1 went to see Dr. Velazquez, complaining that he had had decreased visual acuity in his right eye for approximately 20 days. An eye examination was performed and Patient #1's visual acuity was 20/100 in the right eye and 20/70 in his left eye. A pressure check was also performed. Dr. Velazquez dilated Patient #1's eyes and discovered a retinal detachment. A retinal detachment refers to a condition wherein a tear or hole develops in the retina and the fluid dissects, causing the retina to bulge forward, affecting the vision. Patient #1 had a horseshoe tear in the superior nasal quadrant of his eye. The detachment was bullous, meaning that it was billowing out like a sail. Because of the location and nature of the tear, the retinal detachment most probably occurred very rapidly. Additionally, it is more likely than not, the tear was not present when Dr. Gasset saw Patient #1 on August 28, 1990. Dr. Velazquez sent Patient #1 to the Bascom Palmer Eye Institute (Bascom Palmer) that same day. Patient #1 had retinal detachment surgery at Bascom Palmer on the following day. The next time Dr. Velazquez saw Patient #1 was on December 10, 1990. His best corrected vision was 20/200. He was still being seen by the doctor at Bascom Palmer. Patient #1's next visit to Dr. Velazquez was on January 28, 1991. Dr. Velazquez did a slit lamp exam and a vision check and dilated his eyes to check his retina. On March 18, 1991, Patient #1 was again seen by Dr. Velazquez. He was complaining of distorted vision. The best that she could get him to see was 20/100. Patient #1 was rather nearsighted in the right eye and farsighted in the other eye. The disparity between the visual acuity in his eyes bothered him. Based on the testimony of Drs. Segall and Velazquez, the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in the instant case would be dilation of Patient #1's eyes at least once each year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count Two of the Administrative Complaint, dismissing the portion of Count One of the Administrative Complaint which alleged that Respondent failed to reach an appropriate diagnosis, finding that Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to dilate Patient #1's pupils on a timely basis, issuing a reprimand, and imposing an administrative fine of $1,000. DONE AND ENTERED this 2nd day of November, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 2nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3887 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: Based on the credibility of the witnesses, it is rejected. Paragraphs 5-7: Rejected as unnecessary. Paragraph 8: Accepted in substance. Paragraphs 9-12: Rejected as unnecessary. Paragraphs 13-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts actually found. Paragraphs 19-21: Accepted in substance. Paragraphs 22-23: Rejected as subordinate to the facts actually found. Paragraph 24: Accepted in substance. Paragraphs 25: Rejected as constituting recitation of testimony. Paragraph 26: Accepted to the extent that it states the standard of care but rejected to the extent that it implies that Patient #1 complained of floaters to Dr. Gasset. Paragraph 27: Accepted in substance but rejected to the extent that it implies that Patient #1 told Dr. Gasset that he had decreased vision and floaters. Paragraphs 28-29: Rejected as unnecessary. Paragraph 30: Rejected as recitation of testimony. Paragraph 31: Having judged the credibility of Patient #1, I reject the portion which states that Patient #1 told Dr. Gasset that he was having difficulty in reading because he could see a little black ball while reading. The remainder is accepted in substance. Paragraph 32-34: Rejected as recitation of testimony. Paragraphs 35-40: Rejected as unnecessary. Paragraph 41: Rejected as recitation of testimony. Paragraph 42: Rejected as subordinate to the facts actually found. Paragraph 43: Rejected as constituting recitation of testimony. Respondent's Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: Rejected as unnecessary. Paragraph 4: Accepted in substance. Paragraph 5: Rejected as unnecessary and constituting argument. Paragraph 6: Rejected as unnecessary. Paragraph 7: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: Rejected as recitation of testimony. Paragraph 10: Accepted in substance. Paragraph 11: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraph 12: Rejected as constituting argument. Paragraph 13: The first sentence is rejected as constituting a conclusion of law. Paragraph 14: Rejected as constituting recitation of testimony. Paragraph 15: Rejected as constituting recitation of testimony and argument. Paragraphs 16-17: Rejected as constituting argument. Paragraph 18: Accepted in substance. Paragraph 19: The first sentence is rejected as constituting recitation of testimony. The last sentence is accepted in substance. Paragraphs 20: Rejected as recitation of testimony and constituting argument. Paragraph 22: Rejected as recitation of testimony. Paragraph 22-23: Rejected as unnecessary. Paragraphs 24-25: Rejected as recitation of testimony. COPIES FURNISHED: Carlos J. Ramos, Esquire Kenneth J. Metzger, Esquire Agency For Health Care Administration Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 David P. Dittmar, Esquire Roland Continental Plaza, Suite 400 3250 Mary Street Coconut Grove, Florida 33133 Dr. Marm Harris Executive Director Board of Medicine Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Harold D. Lewis, Esquire The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
