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
Findings Of Fact At all times material hereto, Respondent was a licensed medical doctor in the State of Florida having been issued License No. 0020340. Respondent specializes in the practice of ophthalmology, and is board-certified in that specialty. As indicated above, Respondent has been charged in a three-count complaint with various violations concerning his treatment of three patients. For purposes of clarity, the Findings of Fact section of this Recommended Order will, therefore, treat each such patient separately. ETTA ROSE Respondent first saw Etta Rose as a patient on March 17, 1980. At that time Ms. Rose gave a history of having had "floaters" in both eyes, in her left eye for three months and in her right eye for approximately the past three years. She also indicated a history of hypertension of five years duration. On her initial visit, Ms. Rose informed Respondent that she had last had an eye examination in December of 1978, but could not recall the name of the examining doctor. Upon physical examination on the initial visit of March 17, Respondent determined that the patient had intraocular pressures of 25 in her right eye and 26 in her left eye. In this connection, intraocular pressures of from 12 to 21 are considered roughly normal in a general patient population, and any readings above those levels are generally considered to be elevated. In addition to the above-noted intraocular pressures, Respondent also determined-on this initial visit that the patient had asymmetric nerve heads, the nerve heads in her left eye being markedly larger than those in the right. This degree of difference, according to Respondent's determination, could not be attributed to a congenital defect. Since this degree of differential in the size of the optic nerve heads occurs in less than one percent of the population, this fact, taken together with the patient's elevated intraocular pressures, resulted in Respondent's diagnosis of probable glaucoma. As a result of Respondent's physical findings as outlined above, together with the lack of information from prior treating physicians, Respondent determined that in order to avoid potentially irreversible damage to the patient's eyes, he needed to administer as high a dosage of medication to bring down the patient's intraocular pressures as rapidly as possible. Accordingly, on March 17, 1980, Respondent prescribed a one percent solution of pilocarpine to be administered to the patient's eyes every four hours. Pilocarpine is an old conservative glaucoma medication used specifically to reduce intraocular pressures. A one percent pilocarpine solution' is a relatively light dosage. Therefore, on March 20, 1980, Respondent increased the dosage of pilocarpine to two percent every four hours, and on March 24, 1980, again increased the dosage of pilocarpine to four percent every four hours. Additionally, on March 28, 1980, Respondent added the drug timolol to his attempted medical management of the patient's pressures. It is not medically advisable to start a patient directly on a four percent pilocarpine solution because of the distinct danger of side effects, such as headaches and dimness of vision. As a result, Respondent utilized a process known as "titrating," by starting the patient on a lowered dosage of medication, and rapidly bringing the patient to a maximum dosage, watching carefully during this period for evidence of side effects. The patient in this case apparently experienced no such ill side effects. During his second office visit with the patient on March 20, 1980, Respondent performed a gonioscopy to evaluate the angle where the patient's cornea touched near the iris. This procedure showed the patient to have wide open angles and no scarring. Respondent therefore concluded that the patient suffered from chronic open-angle glaucoma, which was consistent with his initial diagnosis on the first visit of March 17, 1980. On March 20, 1980, the patient's intraocular pressures were 21 in the right eye and 23 in the left eye. During the entire course of his treatment of this patient, Respondent saw the patient in his office on the following dates: March 17, 20, 24, and 28, 1980; April 3, 8, and 22, 1980; May 20, 1980; and June 24, 26, and 27, 1980. Because of the asymmetry in the patient's optic nerve heads, her elevated pressures, and her lack of medical history to demonstrate the progress, if any, of glaucoma, Respondent determined it to be necessary to develop as accurate a profile on the patient as quickly as possible. The purpose of these office visits, which occurred at different times during the day, was to approximate a "diurnal curve." A diurnal curve is a method for determining fluctuating intraocular pressures of a patient, and is customarily obtained by admitting the patient to a hospital, and checking pressures in the patient's eyes approximately every two hours over a 24-hour period. The purpose of the procedure is to obtain an accurate 24-hour reading of the patient's pressures, since pressures within the eye can fluctuate markedly during different times of the day. Respondent determined admitting Ms. Rose to the hospital to be impractical, and set upon a course of seeing her in his office on several rather closely spaced days at different times of the day in order to get a more accurate understanding of her condition. By the time Respondent last saw the patient in his office on June 26, 1980, the patient was on a four percent pilocarpine solution four times a day, .5 percent timolol, and diomox b.i.d., and her pressure in her left eye still remained 26. At that time Respondent determined that he had the option of continuing to carry the patient on these dosages of medication, in which case he determined that the patient would probably go on to progressive damage, or, alternatively, surgical intervention. Respondent determined this amount of medication to have maximized medical therapy and, as a result, recommended a trabeculectomy to attempt to lower the patient's pressures. This surgical recommendation was made on June 27, 1980, at which time Respondent invited the patient to seek a second opinion, recommending that she consult ophthalmologists at the Bascom Palmer Eye Institute at the University of Miami Medical School. The patient sought such an opinion, and elected not to undergo the surgery recommended by Respondent. As a result, the office visit of June 27, 1980, was the last time Respondent saw Etta Rose as a patient. Respondent's diagnosis of the patient at the last visit was chronic open-angle glaucoma that was uncontrollable on medical therapy. The patient was apparently seen by an ophithalmologist on May 15, 1981, and again in January of 1982. The physician who last examined the patient determined that the patient, although she had slightly elevated intraocular pressures, "probably" did not have glaucoma, but should be followed as a "glaucoma suspect" because of the difference in the size of her optic nerves. The record in this cause establishes that there are three parameters generally accepted for diagnosing glaucoma: intraocular pressures; visual fields; and the appearance of the optic nerve. As previously indicated pressures above 21 are generally considered elevated. Throughout Respondent's treatment of Ms. Rose it appears that her intraocular pressures were at all times elevated, and that the optic nerve heads in her left eye were markedly larger than those in her right eye. The record also demonstrates that she evidenced no visual field loss while being treated by Respondent or thereafter. A trabeculectomy is a surgical procedure used in the treatment of glaucoma as a last resort when all other treatment modalities have been exhausted. There is some degree of danger inherent in the procedure, and it is associated with a high failure and complication rate, and can lead to the formation of cataracts. As indicated above, Respondent is charged in the Administrative Complaint with requiring Ms. Rose to come to his office an excessive number of times, with prescribing excessive medication for her condition, and with recommending unnecessary surgery. With respect to the charge of requiring excessive office visits, it is specifically concluded that Respondent exercised that level of care, skill, and treatment which was reasonable under the circumstances given the fact that the patient had elevated intraocular pressures, asymmetric optic nerve heads, and was unable to furnish Respondent with a history that would justify less aggressive treatment than the methods employed by Respondent. Because of these factors, Respondent reasonably determined that the patient should be seen often during the initial stages of therapy particularly in order to evaluate fluctuations in the patient's intraocular pressures. At final hearing, Petitioner adduced credible testimony from two board-certified ophthalmologists that Respondent prescribed excessive medication to Ms. Rose over his period of treatment of that patient. Specifically, these physicians took exception to Respondent's increasing the dosages of pilocarpine from one percent to a four percent solution over an approximately 11-day period. These physicians felt the better practice would have been to proceed more slowly to determine how the patient's pressures were reacting to medication. Equally credible, however, was testimony from the Respondent himself and from another board-certified ophthalmologist that the procedure known as "titrating" whereby the patient is started on a lower dosage and worked to a higher dosage over a short span of time was also reasonable medical treatment under the circumstances. The patient was seen frequently so that any side effects from this increase in medication could be monitored by Respondent. In addition, because of the high degree of difference in the size of the optic nerve heads in the patient's two eyes, Respondent reasonably assumed that glaucoma, if it were present, had progressed to such an extent that it was necessary to get the patient's intraocular pressures under control as rapidly as possible. Respondent reasoned that, should the pressures be brought under control at a higher level of medication, the medication could always be cut back, whereas, if he proceeded more slowly irreversible damage might occur in the interim. This record simply reflects that reasonable ophthalmologists might disagree with respect to the proper administration of medication in this context and, as a result, it cannot be determined from this record that Respondent acted unreasonably in his course of prescribing medications to Etta Rose. Finally, Petitioner adduced credible testimony at final hearing that the trabeculectomy recommended by Respondent was improper because Respondent had not reached maximum medical management of the patients condition in that he had not utilized oral diuretics or epinephrine as treatment modalities. The reasoning here is that until maximum medical management proves unsuccessful in controlling a patient's pressures, a remedy as drastic as a trabeculectomy should not be utilized. Petitioner's witnesses testified that based on the patient's marginally elevated pressures and the fact that she demonstrated no visual field loss, surgical intervention was improper. Again, equally credible testimony from both the Respondent and another board-certified ophthalmologist called as a witness by Respondent establishes that an equally reasonable interpretation of the data available to Respondent was that the patient was, indeed, under maximum medical management, and her intraocular pressures had not responded appropriately to this treatment regime. Further, the record also establishes that it is very unusual to find the degree of difference in the size of the optic nerve heads in this patient without visual field loss. Patients who demonstrate this size differential without visual field loss often do not develop visual field loss until relatively late in the progress of the disease, but when that loss occurs it occurs abruptly and profoundly. Thus, it appears that the risk of performing a trabeculectomy had to be weighed against the danger of irreversible damage from the progress of glaucoma. Under these circumstances, it was reasonable for Respondent to recommend surgery. It should be noted also that at the time Respondent recommended the surgical procedure, he also advised the patient that she was free to seek a second opinion. In addition, Respondent also adduced credible testimony that based on the drugs which he had prescribed medical management of this patient's condition would not have been furthered by adding epinephrine to his course of treatment. Accordingly, the facts of record in this cause do not establish that Respondent caused Etta Rose to visit his office an excessive number of times, that he prescribed excessive medication for his treatment of that patient, or that unnecessary surgery was recommended by Respondent. ALBERT MILLER Respondent first saw Albert Miller as a patient on September 29, 1976. Upon physical examination of the patient, Respondent had no reason to suspect the presence of glaucoma. The patient was next seen on March 16, 1977, for a check of his retina because of his history of diabetes. In addition to diabetes, the patient also had a history of hypertension. There were no changes in the patient's condition on the March 16, 1977, visit, and Respondent instituted no treatment. The patient was next seen for an annual check on May 22, 1978. The patient's vision with his glasses had worsened in both eyes at that time. The patient's history indicates that the patient's diabetes had been high just two months prior to this examination. The diabetes had apparently also affected the patient's intraocular pressures because they were found to be 20 in both eyes on this examination, whereas they had been 17 in the right eye and 16 in the left eye on September 29, 1976, when the patient was first seen by Respondent. Respondent chose not to institute active treatment of the patient after the May 22, 1978, visit. The patient was next seen on July 17, 1979. At that time his pressures were still 20 in both eyes and Respondent noted some slight increase in cataract formation and the presence of retinal hemorrhages in the patient's right eye, indicating some diabetic retinal changes that could make the patient's eyes more susceptible to disease. The patient was next seen on July 15, 1980, at which time his intraocular pressures were measured to be 26 in the right eye and 24 in the left eye. Although there is a notation in Respondent's record that the patient was "squeezing," which can artificially elevate pressures, the Respondent testified without contradiction that the "squeezing" noted in his records did not affect the accuracy of these recorded pressures. As of the July 15, 1980, office visit, Respondent diagnosed the patient as a "glaucoma suspect," which is someone who, because of existing physical factors, runs a substantial chance of developing future glaucoma. As a result of this diagnosis, the Respondent scheduled the patient for visual fields on July 17, 1980, and a gonioscopy on July 18, 1980. Visual fields performed by Respondent showed visual field defects which were suggestive of actual visual field loss on threshold stimulus testing. As a result the Respondent concluded that the patient might already have had early visual field loss, and started the patient on a one percent pilocarpine solution in both eyes, every four hours. The patient was next seen on July 22, 1980, at which time his pressures were measured to be 22 in the right eye and 20 in the left eye at 1:35 p.m. The patient was next seen on July 25, 1980, at which time his pressures were 24 in the right eye and 18 in the left eye. Respondent did not feel that a pressure of 24 in the right eye was adequate medical control, so he increased the patient's medication to two percent pilocarpine solution, and scheduled the patient to return on July 29, 1980. The July 25, 1980, pressure readings were conducted at 8:55 a.m., so the patient was scheduled to return in the early afternoon on July 29, 1980, in order to obtain pressure readings at a different time of day. On that occasion, the patient's pressures were 20 in the right eye and 22 in the left eye, which Respondent still determined not to be adequate medical management. Accordingly, Respondent increased the dosage of pilocarpine to a four percent solution. The patient was next seen on August 1, 1980, at which time his pressures were 21 in the right eye and 22 in the left eye. Respondent concluded the reading of 22 in the left eye, in light of possible visual field defects, was not adequate medical management, so he added 0.25 percent timolol to the four percent pilocarpine prescription. The effect of timolol is usually observable within 48 hours. The patient was next seen on August 5, 1980, at which time his pressures were 17 in the right eye and 18 in the left eye. Respondent was pleased with the lowering of the patient's pressures, and scheduled the patient to return on August 11, 1980. At that time the patient's pressure was 20 in both eyes. Respondent was pleased with these results, and felt that he did not need to see the patient again for a two-week period. The patient never returned. The last time the patient was seen by Respondent on August 11, 1980, the Respondent's diagnosis was "glaucoma suspect," although Respondent felt that he needed to follow the patient longer to monitor his visual fields and optic nerve heads. However, with the patient's history of diabetes, myopia, hypertension, and Respondent's determination that he showed early visual field changes, Respondent felt confident with his final diagnosis of "glaucoma suspect." The patient was subsequently examined by another ophthalmologist in the Fort Lauderdale area on August 28, 1980. At that time the patient's pressures were 19 in the right eye and 20 in the left eye. The patient was given a complete examination, which showed presence of dot and blot hemorrhages throughout the entire retina of both eyes, which was to be expected of a patient who was diabetic for the past 15 years, and had been taking insulin for that condition for the past eight years. The patient's optic nerves were normal, and the patient's cup to disc ratio was also normal. Because the patient's optic nerves were normal, he was taken off the pilocarpine which had been prescribed for him by the Respondent. A visual field test was also administered to the patient to determine the presence of any visual field loss secondary to glaucoma, but that test indicated normal vision. The normal cup to disc ratio found by the subsequent treating physician in examining the patient has remained stable throughout his entire course of treating the patient. The patient was last seen by the subsequent treating physician on May 25, 1982, at which time he had intraocular pressures of 16 in the right eye and 18 in the left eye without medication. Another visual field test was performed on that date, which again disclosed normal vision. The subsequent treating physician, like Respondent, diagnosed the patient to be a potential "glaucoma suspect." In the Administrative Complaint, Respondent is charged with requiring Mr. Miller to make an excessive and unnecessary number of office visits. The Respondent is also charged with failing to maintain records revealing the frequency of use of the pilocarpine prescribed for Mr. Miller, and further with failing to maintain records indicating the percentage dosage of timolol and the date of beginning of use of that drug. With respect to the latter charge, the record contains no facts to substantiate those allegations and, in fact, contains evidence that Respondent clearly noted in his records the information charged as lacking in the Administrative Complaint. The Administrative Complaint also charges Respondent with having required the patient to visit his office a total of ten times between July 17, 1980, and August 11, 1980, which is alleged to be ". . . an excessive an[sic] unnecessary number of office visits." The record in this cause establishes that the patient visited Respondent's office a total of eight times during that period. As indicated above, the patient had been seen by Respondent over a period of approximately four years before there was ever any indication of even marginally elevated pressures. Given the patient's history of diabetes and hypertension Respondent, in the exercise of his clinical judgment, determined to treat the condition with medication. Although the record in this cause contains credible testimony that some physicians would not have treated the condition at all, or would have seen the patient at most once a week, equally credible evidence contained in this record establishes that once the decision to treat was made and the patient was started on medication, it was entirely proper to monitor the patient closely to determine the effect that the medication was having on the patient's pressures. It should be noted that the Respondent is not charged in the Administrative Complaint with prescribing excessive or unnecessary medication. Based upon the foregoing, it is therefore concluded that there is an insufficient factual basis in the record in this proceeding to establish that, under the conditions present here, the Respondent departed from reasonable medical practice in seeing the' patient on eight occasions during approximately a one-month period. ELEANOR DRAGER This patient was first seen by Respondent on January 7, 1980. At that time the patient gave a history of having had her vision go blurry for 15 to 20 minutes on two occasions since the beginning of the year. An examination of the patient's eyes showed her vision to be 20/29 in her right eye and 20/100 in her left eye. Intraocular pressures were 30 in her right eye and 28 in the left eye, both of which are considered to be quite high. The patient's last eye examination had been in October of 1978. The patient was next seen on January 9, 1980, at which time Respondent determined it necessary to perform cataract surgery and to implant an intraocular lens. The surgery was performed on January 30, 1980, and, in addition to removing a cataract and implanting a lens, Respondent performed a posterior sclerotomy, a procedure performed by making a tiny hole in the eye wall and inserting a needle to aspirate vitreous fluid, thereby allowing the remaining vitreous to resume a normal position. The patient was seen postoperatively on February 1, 1980, and again on February 7, 1900. Respondent's practice is to visit frequently with postoperative patients in order to closely monitor the patient's condition. On the February 7, 1980, examination, the patient's vision was 20/70 in her left eye, which Respondent considered excellent for one week postsurgery. The pressure in the eye was 20 and there were no other changes of note. The patient was next seen on February 13, 1980, at which time her vision was only 20/200 in her left eye. The only other finding of note on this date was that the lens implant had shifted to a position closer to the cornea. The patient was next seen on March 13, 1980, at which time her vision was still 20/290 in the left eye, and her pressures were 22 in the right eye and 44 in the left eye. Respondent improved the patient's vision to 20/60 in her left eye with a lens change in her glasses. The patient was next seen on March 25, 1980, in response to a call from the patient indicating that on the previous day she had experienced foggy vision in her left eye, and within an hour could see nothing at all out of the eye., The patient had treated the problem herself with eye drops and, within a couple of hours, her vision had improved. Upon examination, Respondent discovered the patient's vision to be 20/200 in the left eye, with a pressure of Respondent restored the patient's vision to 20/25 with a glasses change, leading him to suspect, in view of the patient's recent surgery, that there was a possibility of retinal detachment or retinal tear with possible vitreous hemorrhage. Respondent was unable to see the entirety of the back of the Patient's eye in order to determine the presence of a retinal tear because a view of certain portions of the eye was blocked by the intraocular lens implant. The patient was next seen on March 31, 1980, complaining of "haze" over her left eye. The patient's vision has worsened to 20/40 in her left eye, and her intraocular pressures were 26 in both eyes. The Respondent again changed the lenses in the patient's glasses, restoring her vision to 20/25 in the left eye. The patient was next seen on April 14, 1980, still complaining of the "haze" over her left eye and an additional complaint of many black dots in the left eye since her last visit. Respondent dilated the eye, and found a large number of vitreous floaters present. Respondent concluded from the presence of these floaters that the patient had probably suffered a vitreous hemorrhage. The most common reason for floaters to be present in a postsurgical cataract patient with a vitreous hemorrhage is retinal tear. Respondent could not, however, actually see the retinal tear upon visual examination. The patient was seen again on April 16 and on April 18, 1980, complaining of an increase of black soots in her left eye. Upon examination, Respondent noted the presence of vitreous traction in the left eye, and determined that the patient should be scheduled for cryo-pexy surgery to be performed in his office on April 21, 1980. Cryo-pexy surgery is an operation that involves the application of cold, in this case a local drop of opthane, to the eyeball in order to produce a tissue destruction to release adhesions thereby avoiding potential retinal tear or detachment. The procedure can be performed in a physician's office, as opposed to a hospital, and requires only 10 to 15 minutes to perform. At the time cryo-pexy surgery was to be performed, Respondent had been unable to actually observe a retinal tear, although he had noted the presence of retinal traction. Respondent felt, however, that a retinal tear could have been caused by the placement of the needle through the pars plana during the course of performing the posterior sclerotomy on January 30, 1980. In fact, many ophthalmalogists perform cryo- pexy at the same time as a posterior schlerotomy in order to prevent a retinal tear from developing as a result of that procedure. Respondent chose to recommend cryo-pexy surgery for a variety of reasons. Among them were the recent cataract surgery, the implantation of an intraocular lens, the performance of the posterior sclerotomy, and the' patient's history of heart disease which would have made it more complicated to perform cutting surgery as opposed to cryo-pexy should an actual retinal detachment occur. The patient had a history of recent phlebitis which had hospitalized her, so that the possibility of placing her under general anesthesia in order to perform major surgery for a retinal detachment thereby leaving her inactive in a hospital bed for a period of days could have resulted in a complication of her phlebitis. The decision to perform cryo-pexy surgery involved the exercise of clinical judgment. Respondent, by necessity, had to weigh the dangers of performing the surgery against problems that might be associated with failure to perform the procedure. The three principal reasons advanced in this record for not performing this procedure were that Respondent's records indicated only the presence of "floaters" and not an actual vitreous hemorrhage; Respondent could not actually visualize the retinal tear prior to recommending surgery; and, the performance of cryo-pexy could have further traumatized an eye which had already been subjected to considerable surgical manipulation. In response to these considerations, Respondent testified, without contradiction, that he considered the presence of "floaters" to be synonymous with vitreous hemorrhage and, therefore, saw no reason to actually note the presence of hemorrhage in his notes. Further, although Respondent could not actually see a retinal tear in the patient's eye, based on his course of treatment of the patient he was aware of the site through which he had placed the needle in performing the posterior sclerotomy, and reasonably concluded that the performance of that procedure, in the presence of so great a quantity of floaters in the patient's eye, could have resulted in a retinal tear. In short, the patient's symptoms were consistent with development of a vitreous hemorrhage following cataract extraction. In light of the fact that the cataract extraction included the performance of a posterior sclerotomy through the pars plana, there was every reason to believe that the patient might have had a hole somewhere in the region of the sclerotomy site. Under these conditions cryo-pexy is an acceptable means of treating this condition despite being unable to see an actual retinal tear. The risk in delaying the performance of the cryo-pexy was that the retina could detach and the problem thereby become more difficult to manage. In making the decision to perform cryo-pexy, the Respondent weighed the risk of performing the procedure against the risk of not performing it, and reasonably determined that the best course of treatment was to perform the procedure.
The Issue The issues in this case are whether Respondent violated Subsections 458.331(1)(m), 458.331(1)(t), and 458.331(1)(u), Florida Statutes (1997),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of medicine pursuant to Section 20.43, and Chapters 456 and 458, Florida Statutes (2006). At all times material to this proceeding, Dr. Geller was a licensed physician within the State of Florida, having been issued license number 35800 on December 18, 1979. Dr. Geller is board-certified in Ophthalmology. Patient P.K. first presented to Dr. Geller's office on February 17, 1998, for evaluation for refractive surgery. At the time of her first visit, P.K. was 56 years old. She had been experiencing difficulty tolerating contact lenses due to dry eyes, seasonal allergies, and some night vision problems, and did not want to wear glasses. Prior to P.K.'s first visit to Dr. Geller, P.K. had been evaluated by Dr. Jonathan Frantz to determine if she was a good candidate for laser refractive surgery. Dr. Frantz informed P.K. that she was not a candidate for laser refractive surgery. Dr. Geller examined P.K.'s eyes on February 17, 1998, at which time he recorded P.K.'s visual acuity with corrective lenses for both eyes. He did not record her uncorrected visual acuity. The evidence did not establish that the failure to determine and record P.K.'s uncorrected visual acuity prior to surgery was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. During the examination on February 17, 1998, Dr. Geller determined P.K.'s anterior chamber depth to be 2.78 by using an optical device and 2.76 - 2.8 by using a sonogram. Dr. Herbert Gould testified as an expert witness for Dr. Geller. It was Dr. Gould's opinion that at least 2.8 millimeters of depth was needed in the anterior chamber for the insertion of a phakic lens. Dr. Osama Omar testified as an expert for the Department. Dr. Omar was of the opinion that an anterior chamber depth of three millimeters was needed for the insertion of a phakic intraocular lens; however, Dr. Omar's opinion was based on a course that he had taken involving an Artisan lens, not a Phakic 6 intraocular lens, which was used in P.K.'s surgery. Dr. Gould's testimony concerning the anterior chamber depth needed for the insertion of a phakic lens is more credible. Dr. Geller measured P.K.'s preoperative endothelial cell count for both eyes by specular microscopy. The reading was more than 2400. Based on his examination of February 17, 1998, Dr. Geller diagnosed P.K. with hyperopia (farsightedness) in both eyes. Dr. Geller told P.K. that he could implant a phakic intraocular lens in each eye that could correct the refractive errors. When a phakic intraocular lens is used, the patient's natural, crystalline lens is left in place, and the intraocular lens is placed either right in front of the iris or in the pupil area plane right behind the iris. Dr. Geller discussed the risks and benefits associated with the insertion of a phakic intraocular lens with P.K. and made a notation of the discussion on P.K.'s medical records for February 17, 1998. His notes established that he had discussed over and under correction, fluctuating vision, corneal disease, and future surgery with her. P.K. was scheduled for the insertion of a phakic intraocular lens in her left eye on March 10, 1998, and in her right eye on March 31, 1998. P.K. signed a consent form for each surgery scheduled to be performed. The consent forms provided: INFORMED CONSENT FOR LENS IMPLANTATION CORRECTION OF REFRACTIVE ERRORS Dear Patient, The South Florida Eye Clinic and Dr. Scott L. Geller have prepared this "informed consent" so that you may understand some of the major details of 'permanent contact lens' intraocular lens implantation. This informed consent naturally is limited in scope and we will just address some major issues related to all ophthalmic surgery. Your discussion with Dr. Geller can elaborate on any of these issues and can touch on other considerations that you may have. Implants performed for correction of refractive error (to get you minimal eyeglass correction, or no eyeglass correction at all) have been performed since the early 1950's. However, in the last ten years, they have been widely performed throughout the world especially in Europe and South America. Lens implants for correction of refractive errors are performed by individual doctors in the United States under 'the scope of medical practice.' At this juncture no FDA approved lenses are available. The lenses being used in our practice have been obtained by Dr. Geller for use in our ongoing clinical studies for correction of errors of refraction. Lens implants have been performed by our office during and after cataract surgery for the past 15 years and Dr. Geller has extensive experience in all lens implant operations. The lens implant operation for the correction of refractive error is very similar to the operation performed for correction of aphakia that has been done by ophthalmologist [sic] worldwide for well over 20 years. Lens implant for refractive error however have [sic] only been performed widely for about the past eight years. We can only predict based on our experience with this and similar surgeries that the operation is safe and effective. However we cannot predict the future and we want you to understand this. The problems that can be associated with any kind of intraocular surgery include [sic] intraocular lens implantations are hemorrhage, infection, cataract, glaucoma, and the necessity for future corneal surgery. We will remind you that these are potential problems that can occur with any similar surgery, and are rarely seen during the career of any ophthalmologist. There have been reported optical aberrations rarely after lens implantation surgery, notably glare or a refractive error that is not exactly as predicted. This may necessitate a change of the lens or a revision of the wound. These problems are extremely rare. Dr. Geller wants to assure you that he is totally confident that this procedure is the most effective for you at this time. In studying this procedure under a world renowned ophthalmologist and has seen patients who have had several years or internal contact lens use. If you should have any further questions, please don't hesitate to ask Dr. Geller directly. Dr. Geller told P.K. that he had done many lens implants. Dr. Geller's assistant also told P.K. that Dr. Geller had been doing lens implants for a long time with good results. Based on the representations from Dr. Geller and his assistant and the information contained in the consent form, P.K. understandably was left with the impression that Dr. Geller had been doing the implantations of Phakic 6 intraocular lenses in his office on a regular basis and that he had done many of the implantations without problems. On March 10, 1998, when Dr. Geller performed the scheduled lens implantation surgery on P.K.'s left eye, he noted her corrected visual acuity, but did not record her uncorrected visual acuity. During the surgery, Dr. Geller inserted a Phakic 6 intraocular lens manufactured by Ophthalmic Innovations into P.K.'s left eye. On March 31, 1998, P.K. presented at Dr. Geller's office for lens implantation in her right eye. Prior to the surgery, Dr. Geller checked the uncorrected visual acuity of P.K.'s right eye, which was 20/150. During the surgery, Dr. Geller inserted a Phakic 6 intraocular lens manufactured by Ophthalmic Innovations into P.K.'s right eye. In March of 1998, the lenses which were inserted in P.K.'s eyes were not approved by the Food and Drug Administration (FDA). The Phakic 6 intraocular lens had been approved for use in Canada and some countries in Europe, Asia, and South America. At the time of P.K.'s surgery, the phakic lenses were not available through standard, mainstream commercial sources within the United States. Dr. Omar opined that the use of a lens which has not been approved by the FDA falls below the standard of care which should be used by a reasonably prudent similar physician. Dr. Herbert Gould and Dr. James Rowsey, who also testified as expert witness for Dr. Geller, opined that the use of a lens which has not been approved by the FDA, by itself, does not equate to a failure to practice 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. The testimony of Drs. Gould and Rowsey are more credible. It should be noted that the FDA did not ban the use of the Phakic 6 lens, but that the lens had not been investigated and approved by the FDA. There have been other products which have not been approved by the FDA, but which physicians use without falling below the standard of care required of the physicians. One such product is glue which was used by physicians in eye surgery. P.K. returned to Dr. Geller's office for postoperative care in March and April 1998. She was in Canada during the summer of 1998 and did not see Dr. Geller from April to October 1998. On October 15, 1998, P.K. presented to Dr. Geller complaining of sensitivity to light and poor visual acuity. Dr. Geller diagnosed P.K. as having iritis. On October 21, 1998, Dr. Geller indicated in P.K.'s medical notes to "get spec micros ou," which indicates a specular microscopy for both eyes. Such a test would indicate P.K.'s endothelial cell count. Dr. Geller's notes indicate a similar entry on November 2, 1998. Dr. Geller's medical notes for P.K.'s visit on November 17, 1998, indicate "spec done ou," but reveal a pachymetry reading of 56/48 and do not indicate an endothelial cell count. Pachymetry is a test which is used to determine the health of a cornea by measuring the thickness of the cornea. The specular microscopy measures the endothelial cell density of the cornea. The testimony of Dr. Omar is credited that a postoperative specular microscopy was required to be done in order to compare the preoperative and postoperative endothelial cell counts. On November 17, 1998, Dr. Geller identified a corneal edema in P.K.'s right eye. He did not refer P.K. to a corneal specialist. Dr. Geller had experience in treating corneal problems, including performing corneal transplants. His experience and training was sufficient to treat P.K.'s corneal edema without having to refer her to a corneal specialist. Dr. Geller treated the edema with anti-inflammatory drugs. The edema continued to be present on subsequent visits on December 1, 3, and 9, 1998. On December 9, 1998, Dr. Geller recommended the removal of the phakic intraocular lens from P.K.'s right eye. He removed the lens on December 15, 1998. Dr. Geller provided postoperative care for P.K. through March 1999. P.K. did not return to see Dr. Geller after March 1999. P.K. returned to Canada and in June 1999 saw Dr. Peter J. Agapitos, who diagnosed her with corneal edema in both eyes and recommended that P.K. return to Florida to have Dr. Geller remove the intraocular lens in the left eye. On June 21, 1999, P.K. called Dr. Geller's office complaining that her left eye was very sensitive to light, crusty, and irritated. Dr. Geller's office referred P.K. to a physician in Canada. P.K. had the intraocular lens in her left eye removed. Additionally, she has required cataract surgery and more than one corneal transplant since Dr. Geller performed the phakic intraocular lens implantations. Dr. Omar was of the opinion that the implantation of a phakic intraocular lens to treat refractive error was experimental in 1998. He defined "experimental" as "a treatment that's currently untested, not developed to the point which can be offered in a mainstream fashion, has not demonstrated safety, ethicacy [sic] in the correction of the problem that the patient may need." Drs. Gould and Rowsey did not feel that the procedure was experimental by 1998. Dr. Rowsey did opine that the procedure was "uncommon" in the United States. Physicians in Europe, Asia, and South America were doing phakic intraocular implants during the 1980's. By 1998, there were peer reviewed literature published concerning phakic intraocular implants and a considerable amount of presentations given concerning the use of phakic intraocular lenses. The production of the Phakic 6 intraocular lens began in 1992, and by the time of P.K.'s surgery, approximately 4,000 to 5,000 implants of the Phakic 6 intraocular lens had been done successfully worldwide. However, few physicians in the United States were performing phakic intraocular lens implantations by 1998, and only a couple of dozen phakic intraocular lens implants had been done in the United States by 1998, representing less than one percent of the total intraocular lens implantations. In 1998, there was no doctor in the United States who was routinely implanting these lenses except as part of a study. In 1997, Dr. Geller went to New York City to the surgery center of Dr. Miles Galin, who was performing implantations of phakic intraocular lenses. Dr. Geller observed several preoperative and postoperative cases on the day he visited Dr. Galin. Dr. Geller also "scrubbed in" and observed at least one implantation being performed by Dr. Galin. Prior to performing surgery on P.K., Dr. Geller had performed less than five implantations of phakic intraocular lenses and had reviewed literature in American and European journals concerning phakic intraocular lenses. The procedures and skills used to insert an intraocular lens implant are substantially similar to those procedures and skills necessary to place an anterior chamber lens after a cataract removal. Dr. Geller's practice involves anterior segment surgery, including cataract surgery. The evidence established that Dr. Geller had adequate education and training to be able to insert phakic intraocular lenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Geller violated Subsections 458.331(1)(m), 458.331(1)(t) and 458.331(1)(u), Florida Statutes; imposing a reprimand; imposing an administrative fine of $1,000 for each violation for a total of $3,000; placing Dr. Geller on probation for one year on the terms to be set by the Board of Medicine; and requiring Dr. Geller to attend continuing medical education courses to be specified by the Board of Medicine. DONE AND ENTERED this 2nd day of November, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd of November, 2006.
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 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 for determination in this case is whether Respondent's license to practice medicine in the State of Florida should be disciplined for disseminating, or causing the dissemination of an advertisement that was false, deceptive or misleading in violation of Rule 59R-11.001, Florida Administrative Code, and Section 458.331(1)(x), Florida Statutes.
Findings Of Fact Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with the statutory authority under Chapter 458, Florida Statutes, to regulate the practice of medicine. Respondent, JONATHAN M. FRANTZ, M.D., is and at all material times has been, a licensed physician in the State of Florida, having been issued license number ME 0054884. Respondent graduated from the University of Miami School of Medicine in 1983, and thereafter entered a residency program in Opthamology at the Louisiana State University Eye Center in New Orleans, Louisiana, where from 1987 to 1989 Respondent was a Fellow in Cornea, External Disease, and Refractive Surgery. During his Fellowship at the Louisiana State University Eye Center, Respondent participated in the initial research projects involving the Excimer Laser Procedure, which at that time was exclusively an investigational device. The term "investigational device" is a technical term used by the Food and Drug Administration (FDA) and medical researchers. The term means that a device has yet to be approved for treatment of human patients by the FDA and that its use is limited by the FDA to research investigations. The Excimer Laser is a device that projects a wavelength of light over the surface of the cornea to treat nearsightedness and astigmatism. The wavelength of light removes irregularities on the surface of the cornea or anterior corneal tissue in order to change the refraction of the eye and improve the patient's eyesight. At all material times, the Excimer Laser was an investigational device. Radial Keratotomy is, and at all material times was an FDA approved procedure for the treatment of nearsightedness and astigmatism. The Excimer Laser procedure differs from Radial Keratotomy in that Radial Keratotomy is a procedure in which incisions are made to the corneal tissue itself. The incisions allow for the flattening of the center of the cornea, and thus, unlike the Excimer Laser, actually change the structure of the cornea. During his Fellowship, Respondent participated in primate and human research involving the Excimer Laser, and assisted in the development of protocols for use in the first treatment of human patients with the device. Respondent received a research award from the National Eye Institute for his investigative work with the Excimer Laser. Respondent has published several articles in medical literature relating to the Excimer Laser. Respondent is certified by the American Board of Opthamology, and is a member of the American Academy of Opthamology. After completion of his Fellowship, Respondent entered private practice in Ft. Myers, Florida. While in private practice, Respondent continued his research work with the Excimer Laser. In 1990, Respondent was selected as one of a small group of physicians to conduct Excimer Laser investigational treatments on patients. As a principal investigator, Respondent treated patients with all degrees of nearsightedness and astigmatism. In May of 1993 Respondent was employed by Eye Centers of Florida located in Ft. Myers, Florida. Respondent performed Excimer Laser investigational procedures while so employed. At this time, the Excimer Laser procedure was also being performed by Dr. James J. Rowsey, Jr., Chairman of the Department of Opthamology at the University of South Florida in Tampa, Florida. The Excimer Laser procedure performed at the University of South Florida offered a different protocol than that offered by Respondent at the Eye Centers of Florida. Respondent was the only Opthamologist in Florida offering Excimer Laser procedures for patients with all degrees of nearsightedness and astigmatism, as well as offering Radial Keratotomy. In addition to his expertise in Opthamology, Dr. Rowsey has extensive expertise in the area of ethical medical advertising. On May 23, 1993, the following advertisement was published in the Charlotte Sun Herald, a Florida newspaper: Jonathan M. Frantz, M.D., corneal specialist with the Eye Centers of Florida, invites you to join him for an exciting lecture on the newest breakthroughs in eye surgery - the Excimer laser and Radial Keratotomy (RK). Eye Care Centers of Florida is the only eye care center in Florida that offers both options. Come to our free seminar and find out how you can reduce your need for glasses or contact lenses. EXCIMER LASER RADIAL KERATOTOMY THE CORRECTION OF NEARSIGHTEDNESS AND ASTIGMATISM FREE ADMISSION AND SCREENING FOR EXCIMER LASER AVAILABLE PLEASE BRING GLASSES AND/OR CURRENT EYE GLASS PRESCRIPTION WEDNESDAY, MAY 26 7:00 PM FIRST FEDERAL BANK BUILDING 3524 D TAMIAMI TRAIL (SECOND FLOOR) PORT CHARLOTTE RESERVATIONS 1-800-226-3377 OR 1-813-939-3456 EYE CENTERS OF FLORIDA Helping You See Your Best 4101 Evans Avenue Fort Myers, Florida (Caution: The Excimer Laser is an Investigational Device. Limited by Federal Law to Investigational Use.) The advertisement also contained Respondent's picture, and the logo for the Eye Centers of Florida. The advertisement was composed by a marketing agency retained by the Eye Centers of Florida. Respondent was generally aware of the contents of the advertisement, but did not give specific approval for the placement of the advertisement. Respondent was aware that the advertisement of the Excimer Laser required cautionary language stating that the procedure was an investigational device limited by the FDA. The advertisement clearly states that the Excimer Laser is an investigational device limited by the FDA. The advertisement is a public invitation to attend a lecture given by Respondent concerning the Excimer Laser and Radial Keratotomy. At the lecture, Respondent explained that the Excimer Laser was an investigational device. Thereafter a person seeking Excimer Laser treatment was given a consent form that explained in detail the investigatory nature of the procedure. As a principal investigator Respondent was limited in the number of patients he could treat with the Excimer Laser. Respondent received an economic benefit from the treatment of patients with the Excimer Laser. As a result of the investigational efforts of Respondent and other medical researchers, the Excimer Laser was proved to have beneficial results in the treatment of nearsightedness and astigmatism. Subsequent to the publication of the advertisement, the Excimer Laser received FDA approval. The advertisement was reviewed by Norman S. Levy, M.D., Ph.D., an Opthamologist, and Director of the Florida Opthamologic Institute in Gainesville, Florida. As an expert in Opthamology, Dr. Levy opined that the advertisement published in this case was deceptive in that the advertisement implied that the Excimer Laser and Radial Keratotomy procedures were equally available, and the experimental nature of the Excimer Laser procedure was not clear from the advertisement. The advertisement was also reviewed by Dr. Rowsey, who opined that the advertisement was not misleading or deceptive, that the advertisement clearly contained cautionary language stating that the Excimer Laser was at that time an investigational device, and that the advertisement was merely a public invitation to a lecture to obtain more information regarding these procedures. In this respect, Dr. Rowsey has specific and extensive experience with the Excimer Laser, as well as in medical ethics, and his opinion on this issue is deemed more credible. There is no evidence that a patient of the Respondent's was deceived or mislead by the advertisement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner, the AGENCY FOR HEALTH CARE ADMINISTRATION, enter a final order dismissing the Administrative Complaint filed against Respondent JONATHAN M. FRANTZ, M.D., in the above-styled case. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of January, 1996. RICHARD HIXSON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3773 Petitioner's Proposed Findings of Fact. 1.-6 Accepted and incorporated. Rejected to the extent that Respondent personally approved the advertisement. Rejected to the extent that a lay person could be misled. Rejected as not supported by the weight of evidence. Respondent's Proposed Findings of Fact. 1.&2. Accepted and incorporated. 3. Rejected as irrelevant. 4.-.7. Accepted and incorporated. 8.&9. Rejected as not necessary. 10.-12. Accepted and incorporated. 13. Rejected as not necessary. 14.-16. Accepted and incorporated. 17. Rejected as not necessary. 18.-26. Accepted and incorporated. COPIES FURNISHED: Joseph S. Garwood, Esquire AHCA - Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Lauro, Esquire Barnett Plaza, Suite 3950 101 East Kennedy Boulevard Tampa, Florida 33602
The Issue The issue for consideration in this case is whether alleged statements attributed to the Board of Optometry were made by the Board, and if so, whether the statements constitute unpromulgated rules prohibited by Section 120.54(1)(a), Florida Statutes, (Supp. 1996).
Findings Of Fact The parties stipulated as a matter of fact that: The FOA is a not-for-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, to practice optometry in Florida. All FOA members are subject to and regulated by the Board of Optometry and its rules. The FOA has approximately 1,022 members. The Board of Optometry is the agency responsible for regulating the optometric practice of all FOA members. Board rules and agency statements of general applicability regulate the optometric practice of all FOA members. Individual members of the FOA, being subject to and regulated by the rules and policy of the Board of optometry, are persons whose substantial interests will be affected by the alleged agency statements and are thus substantially affected persons within the meaning of Section 120.56(1)(e), Florida Statutes (Supp. 1966). As all members of the FOA are subject to and regulated by Board rules and statements of general applicability, a substantial number of the FOA’s members would be substantially affected by the alleged statements. The objective of the FOA is to promote and protect the interests of the general public and licensed optometrists in ensuring the availability of high quality eye care at an affordable price. The FOA represents its members through the provision of education and training, and by participation in administrative proceedings, legislative activities, and court litigation. Petitioner, Brian Lloyd Weber, O.D., is an optometrist licensed and practicing in Florida. Petitioner, 29/49 Optical Inc., (29/49), is a corporation which operates optical establishments in Florida. The Board of Optometry is the state agency in Florida which licenses optometrists and regulates the practice of optometry in this state. On January 29, 1992, the Probable Cause Panel of the Board of Optometry determined there was probable cause to discipline the license of Dr. Weber because of an alleged violation of Section 463.014(1)(b), Florida Statutes, involving the corporate practice of optometry. Thereafter, on February 2, 1992, an Administrative Complaint was filed with the Board which alleged that Dr. Weber had violated the cited statute by engaging in the practice of optometry with a corporation not composed of other health care providers; by entering into a corporate arrangement which permitted an unlicensed person to practice optometry through Dr. Weber, in violation of Rule 21Q-3.008, (now Rule 59V-3.008, Florida Administrative Code); and by holding himself out to the public as available to render professional services in a manner which implies he is professionally associated with an entity which is not a licensed practitioner, also in violation of the Rule. The investigation conducted by the then Department of Professional Regulation, which led up to the action of the panel and the filing of the Administrative Complaint indicated that Dr. Weber owned 250 shares of stock in 29/49, along with an optician, Anthony Record, not licensed to provide optometry services, who also owns stock in the corporation. Allegedly, the corporation operated at five different locations, at one or more of which eye examinations were performed. It was also alleged that 29/49 had publicly advertised itself as an entity which provided complete eye examinations, and that Dr. Weber performed the eye examinations described in the advertisements. In fact, Dr. Weber is a director and officer of 29/49. He holds a 75% ownership share in the corporation. Both Dr. Weber and Mr. Record control the corporation and share the duties and profits of the operation. The firm provides optitianry services, as defined in Sections 484.002(3) and (7), Florida Statutes. Dr. Weber asserts that the operations of 29/49 are separate from the operations of his optometric practice, and claims that the Board’s direction to him to change the corporate structure of 29/49 so as to dissolve his partnership with a lay person is a continuation of what he claims is a long-standing policy of prohibiting the joint ownership of an optitianry between and optometrist and a lay person. Before a hearing was held on the Administrative Complaint, Dr. Weber and counsel for the Board entered into a stipulation which, if accepted by the Board, would have resolved the pending disciplinary action. The stipulation was presented to the Board at its July 8, 1993 meeting, at which time the Board voted to reject it and to propose a counter-stipulation. At that meeting, the Board did not enunciate any of the alleged agency statements at issue here nor did it take a position as to what Dr. Weber must do to rectify the practice situation to its satisfaction. Nonetheless, by Order dated September 9, 1993, the Board formally rejected the proposed stipulation and proposed its own stipulation. On September 12, 1996, Dr. Weber and the Agency’s counsel presented a second stipulation to the Board for settlement of the disciplinary matter, but again the Board voted to reject the stipulation and to offer its own second counter- stipulation. This counter-proposal called for Dr. Weber to change his corporate structure so that he no longer violated the statutory prohibition against practicing optometry with non- licensed individuals, and that he no longer practice with a lay person. This second counter-proposal by the Board did not enunciate any of the alleged agency statements at issue herein. This second counter-proposal was promulgated in an Order of the Board issued on October 15, 1996. Sections 463.014(1)(a)&(b), Florida Statutes, provide: No corporation, lay body, organization, or individual other than a licensed practitioner shall engage in the practice of optometry through the means of engaging the services, upon a salary, commission, or other means or inducement, of any person licensed to practice optometry in this state. Nothing in this section shall be deemed to prohibit the association of a licensed practitioner with a multidisciplinary group of licensed health care professionals, the primary objective of which is the diagnosis and treatment of the human body. No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group or lay individual. This provision shall not prohibit licensed practitioners from employing, or from forming partnership or professional associations with, licensed practitioners licensed in this state or with other licensed health care professionals, the primary objective of whom is the diagnosis and treatment of the human body. Consistent therewith, the Board of Optometry has promulgated Rule 59V-3.008, Florida Administrative Code, which implements the provisions of the statute. Rule 59V-3.008, Florida Administrative Code, restates the intent of the legislature regarding the need for licensure of practitioners of optometry, defines a “licensed practitioner”, and thereafter outlines with particularity those actions which may and those which may not be carried on by licensed optometrists in Florida. The rule is quite clear in its definitions and leaves little room for misunderstanding regarding what constitutes the practice of optometry and optometric services; those individuals who must be licensed; what professional activities a licensed practitioner may perform and what activities constitute a violation of Section 463.014,Florida Statutes. Of specific relevance to the issues herein are: (15)(b) Entering into any agreement (whether written or oral) which allows, permits or facilitates an entity which itself is not a licensed practitioner to practice optometry, to offer optometric services to the public, or to control through any means whatever any aspect of the practice of optometry. Allowing, permitting, encouraging, forbearing, or condoning any advertisement including those placed in a newspaper, magazine, brochure, flier, telephone directory, or on television or radio, which implies or suggests that the licensed practitioner is professionally associated or affiliated with an entity which itself is not a licensed practitioner. Occupying or otherwise using professional office space in any manner which does not clearly and sufficiently indicate to the public that his/her practice of optometry is independent of and not associated with an entity which itself is not a licensed practitioner. , (I), and(j), [which all refer with specificity to some action which relates to the practice of optometry by a licensed practitioner with an entity which itself is not a licensed licensed practitioner.] This rule has been challenged in the courts and determined to be a valid exercise of delegated legislative authority. Petitioner claims that pronouncements by the Board of Optometry since the passage of the relevant statute and the promulgation of the relevant rule, including a Declaratory Statement by the Board in response to a Petition therefore by Phillip R. Sidran, O.D. in 1991, found at 13 FALR 4804; and in discussion of members at various meetings of the Board’s Probable Cause Panel; all indicate that the Board has formulated a policy regarding the instant issue which is neither a statute nor a properly promulgated rule. In 1991, Dr. Sidran, a licensed optometrist, sought a declaratory statement from the Board regarding the propriety of having a licensed optician share the revenues and responsibilities deriving from the optical portion of his practice. In its Declaratory Statement, issued on October 9, 1991, the Board specifically referred to and quoted the controlling portions of the statute and the rule which it then interpreted as indicating such an arrangement was prohibited. At no time did the Board promulgate new guidelines or expand the strictures imposed by the existing statute and rule. It applied an existing statute and rule to the factual situation posed by Dr. Sidran and concluded that under the facts of that case, the existing statute and rule prohibited the proposed relationship. The subsequent discussion of that opinion at the meeting of the Board’s Probable Cause Panel, convened on January 29, 1992, to consider proposed disciplinary action against Dr. Weber for the situation described here with 20/49, again interpreted existing statute and rule but did not formulate policy. Petitioner further refers to two additional meetings of the Board of Optometry at its meetings on July 8, 1993 and September 12, 1996, at both of which the members present discussed the situation regarding Dr. Weber’s business relationship in 29/49. He claims that in both situations, the Board members made policy statements which should have been formalized through the promulgation of a rule amendment or supplement. Review of the transcripts of those meeting does not support Dr. Weber’s position, however. It is clear that in each case the Board members examined the facts presented to them, applied the existing statutory and rule provisions to those facts, and concluded that the Petitioner’s actions constituted a violation of existing law. The Board’s position vis a vis Dr. Weber’s business arrangement was made a part of the Board’s counter-proposal to the stipulation of settlement initially agreed to by Dr. Weber and the Department’s counsel. In it’s counter-stipulation, which came out of the September 12, 1996 Board meeting, the Board required Dr. Weber to “... change his corporate structure so he is no longer in violation of Section 463.014(1)(b), Florida Statues, and that [his] practice be changed so that he is no longer practicing with a lay person.”
The Issue The issues in this case concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, Board of Opticianry (Petitioner) against Samuel Rosenberg (Respondent).The allegations in that administrative complaint are directed to claimed improprieties on the part of the Respondent in his actions as a sponsoring optician for the benefit of David Somerville, an apprentice optician, both men licensed in the state of Florida. Respondent is said to have violated various provisions of Chapters 455 and 484, Florida Statutes, and Chapter 21P, Florida Administrative Code.
Findings Of Fact Part A The following facts are found based upon the stipulation entered into by the parties: Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of opticianry, pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 484, Florida Statutes. Respondent is a licensed optician in the state of Florida, having been issued license number 0001618. Respondent's last known address is 542 White Street, Daytona Beach, Florida. David Somerville is not a licensed optician in the state of Florida. He is currently registered as an apprentice. A successful completion of this apprenticeship would enable him to sit for the Florida Examination to become licensed as an optician. An individual who is registered as an apprentice can perform no independent opticianry functions. An apprentice optician's activities must be directly supervised by a licensed optician. The Respondent is David Somerville's supervising apprentice sponsor. In February 1985, for a period of two or three weeks, Respondent had been an employee at Brandywine Optical, the business premises of David Somerville. Respondent then agreed to act as Somerville's sponsoring optician, supervising Somerville for forty hours per week. Part B Factual findings based upon the testimony adduced at hearing and in consideration of exhibits admitted at hearing: As reflected in Petitioner's Exhibit 7 admitted into evidence, on March 14, 1985, Samuel Rosenberg made application as sponsor of an apprenticeship program for the benefit of David Somerville. In that application it was indicated that Rosenberg would supervise the apprenticeship of Somerville for a period of forty hours a week. Rosenberg believes that Somerville is capable of performing opticianry work. He states that based upon Somerville's past experience and performance, he, Rosenberg, can afford to step out for a cup of coffee, and while he is out of Brandywine Optical, Somerville can do as fine a job of adjusting a pair of glasses as Rosenberg could. He also feels that it would be acceptable to leave Somerville alone while Rosenberg goes to the post office to mail things. Rosenberg does not feel responsible to monitor Somerville's activities at the Brandywine Optical business other than within the forty hours for which he is involved with Somerville. In supervising Somerville, Rosenberg had an arrangement early on in which twelve hours' supervision was given at a flea market and an additional twenty-eight hours at the Brandywine Optical store. This changed to eight hours on Saturday at the flea market and thirty-two hours a week at Brandywine Optical. The thirty-two hours is from Monday through Thursday. On Friday, Rosenberg understands that an optometrist is in attendance at the Brandywine Optical, and Somerville is only answering the phone and showing frames to customers. Nonetheless, Rosenberg admits that he has never been at the Brandywine Optical on Friday to confirm this arrangement in which Somerville is purported to do no opticianry work. Rosenberg assumes that Somerville in good conscience will not do anything irregular related to activities by an apprentice optician while Rosenberg is not attendance on Fridays. Otherwise, Rosenberg assumes that the optometrist at the business on Friday is responsible for Somervilles activities. Robert Schwalm, a licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985;. and April 17, 1985, while seated in the parking lot adjacent to the Brandywine Optical store and using 50 power binoculars, observed Somerville without supervision of an optician, optometrist or opthalmologist, practice opticianry, to wit, adjusting, delivering, fitting and collecting money for glasses. Adjustments would include working on frames etc. Rosenberg was not in attendance while these activities were being conducted by Somerville. On these occasions, when Rosenberg would arrive at the store, the witness Schwalm would depart. Similarly, Harry Rowley, licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985; and April 17, 1985, observed Somerville's participating in the practice of opticianry. Except for one of these instances in which Rosenberg came into the store, Somerville was practicing opticianry outside the presence of Rosenberg. Somerville's practice of opticianry included dispensing glasses, adjusting glasses and collecting fees. On July 22, 1985, an investigator with the Department of Professional Regulation, Philip T. Hundermann, went to the Brandywine Optical store and parked outside the store. He arrived between 9:30 a.m. and 10:00 a.m. At 10:00 a.m. a person was observed leaving the store. At 10:05 a.m. Rosenberg was seen parking his car and then was observed entering the premises. The investigator went into the store at 10:10 a.m. and observed Somerville talking to a male customer while Rosenberg was standing at the counter. The investigator then requested that Rosenberg participate in an interview. Rosenberg and the investigator left the business premises and in another location held a discussion about concerns related to a complaint against Rosenberg's license. Rosenberg told the investigator that he supervised Somerville for a period of forty hours a week as the sponsoring optician. Rosenberg said that typically he would arrive at the Brandywine Optical store at 10:00 a.m. and leave around 4:00 or 4:30 p.m. This would mean that Somerville was unsupervised from 9:00 a.m. to 10:00 a.m. and from 4:00 or 4:30 p.m. to 5:00 p.m. On August 27, 1985, Douglas Vanderbllt, an investigator with the Department of Professional Regulation, went to the Brandywine Optical store. When he entered the store, Somerville and another customer were the only persons in attendance. The customer was trying on frames and making a selection of frames, with the assistance of Somerville. Vanderbilt picked out some frames that he wanted to buy. Somerville took the glasses that Vanderbilt had and made measurements from those glasses. This was in furtherance of the preparation of a new pair of spectacles at a cost of $1lO. Sixty dollars was paid down. Some of the measurements Somerville made pertaining to Vanderbilt involved bifocals. No prescription had been presented by Vanderbilt and Somerville used the old glasses which Vanderbilt had as a basis for measurement. Vanderbilt was presented with a business card which may be found as Petitioner's Exhibit 1 admitted into evidence. The business card reflects Brandywine Optical, prescriptions filled, eye glasses and contact lenses. It gives the business address and indicates that David Somerville is the dispensing optician. This card is similar to a card sitting on the counter where Vanderbilt was seated. Respondent was aware of the information set forth on the card received as an exhibit. Somerville, upon the questioning of Vanderbilt, confirmed that the name Somerville reflected on the card and the Respondent Somerville were one and the same person. On September 9, 1985, Vanderbilt returned to the business premises at Brandywine Optical. At that time, only Somerville was present. Somerville broke the black stainlesse steel frame across the bridge of the new glasses. Consequently, Vanderbilt picked out a brown frame, and Somerville fitted the brown pair of glasses on Vanderbilt.
