83-000527 Board Of Optometry vs. John T. Beckum Status: Closed Recommended Order on Friday, August 19, 1983.

Summary: Respondent was guilty of misconcuct and should be fined $1000 and suspended for six months.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF OPTOMETRY , )

)

Petitioner , )

)

vs. ) CASE NO. 83-527

)

JOHN T. BECKUM, O.D. , )

)

Respondent. )

_________________________________)

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this

matter on June 9, 1983, in Gainesville, Florida. The following appearances were

entered : Joseph W. Lawrence, II, Tallahassee, Florida, appeared on behalf of

the Petitioner, Department of Professional Regulation, Board of Optometry; and

Stephen Marc Slepin, Tallahassee, Florida, appeared on behalf of the Respondent,

John T. Beckum, O.D.

On or about February 1, 1983, the Petitioner issued an Administrative

Complaint against the Respondent. It is alleged in the complaint that the

Respondent, a licensed optometrist, violated provisions of Florida statutes

relating to the practice of optometry. The Respondent requested a formal

administrative hearing, and the matter was forwarded to the office of the

Division of Administrative Hearings. The final hearing was scheduled to be

conducted as set out above by notice dated March 11, 1983.

At the final hearing, the Petitioner called the following witnesses :

Karilyn Boggan Peterson, a former patient of the Respondent; Dr. William F.

Guyton, an ophthalmologist licensed to practice in Florida; Paul Funderburk, a

licensed optometrist; and Walter Hathaway, a licensed optometrist. The

Respondent testified as a witness on his own behalf and called the following

additional witnesses : Richard A. Griffin, a licensed optometrist; and Elaine

Beckum, the Respondent's wife and receptionist. Joint Exhibits 1 through 8, 10

and 11; Petitioner's Exhibits 1, 2 and 4; and Respondent's Exhibits 2 through 6

were offered into evidence and received. Joint Exhibit 9, Petitioner's Exhibit

3 and Respondent's Exhibit 1 were offered into evidence and rejected.

The parties have submitted posthearing legal memoranda which include

proposed findings of fact and conclusions of law. The proposed findings and

conclusions have been adopted only to the extent that they are explicitly set

out in the Findings of Fact and Conclusions of Law which follow. They have been

otherwise rejected as not supported by the evidence, contrary to the better

weight of the evidence, irrelevant to the issues, or unnecessary to a resolution

of the proceeding, or contrary to law.

ISSUES

The ultimate issues to be resolved in this matter are whether the

Respondent has violated provisions of law relating to the practice of optometry

and, if so, what penalty should be imposed. The Respondent has been

specifically charged with violating Section 463.016(1)(g), Florida Statutes, in

connection with his examination and treatment of Karilyn Boggan Peterson. The

Respondent contends that his treatment of Peterson was in accordance with

accepted standards of optometric practice.

In resolving the issues, it has been necessary to resolve conflicting

testimony given by the Respondent and Karilyn Boggan Peterson. In resolving the

conflicting evidence, due regard has been given to the demeanor of the witnesses

at the hearing and the extent to which their testimony is corroborated by other

evidence. In most instances, the conflicting testimony has been resolved in

favor of the witness Peterson and against the Respondent. The witness

Peterson's testimony has been deemed credible. In many respects, the

Respondent's testimony is not corroborated even by the Respondent's own records.

His testimony has not been deemed credible.

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent has been

licensed to practice optometry in the State of Florida. He holds License No.

0000668 issued by the Florida State Board of Optometry. The Respondent has

practiced optometry in Gainesville, Florida, since 1960. He has a good

educational background and is an active member in several professional

organizations.

2. During June, 1979, Karilyn Boggan, who since then has married and

changed her name to Karilyn Boggan Peterson, visited the Respondent's office in

Gainesville, Florida. She had bought a pair of nonprescription sunglasses from

the Respondent a year prior to that, and she wanted to purchase a new pair of

sunglasses and to have her eyes examined. She had not previously worn

prescription glasses. She was experiencing some difficulties with her eyes.

When she read for long periods, her eyes would get irritated, and she would get

drowsy. The problem appeared to be getting worse.

3. Boggan visited the Respondent's office on June 28, 1979, and related

these problems to him. The Respondent examined Boggan and advised her that she

had an astigmatism and that she would benefit from wearing prescription glasses.

She asked if he would write a prescription so that she could have it filled at a

place where glasses were available at less cost. Respondent advised her that he

would need to charge her an additional $15 if she did not buy the glasses from

him. She then requested that the Respondent fill the prescription. Respondent

advised Boggan that persons with astigmatisms were generally sensitive to light,

and he asked if she wanted "tinted" or "photogray" lenses. She said that she

did.

4. On July 14, 1979, Boggan returned to the Respondent's office to be

fitted for her new glasses. The only instructions that the Respondent gave her

about the glasses were that she should wash them in soap and water. Boggan paid

the Respondent for the examination and the glasses. Approximately one month

later, Boggan contacted the Respondent by telephone and advised him that she did

not notice a lot of difference in her vision when she used the prescription

glasses. She asked the Respondent if she should wear them at all times, or just

when she read. The Respondent advised Boggan that she should wear the glasses

all of the time. Prior to then, Boggan had been wearing the glasses

irregularly. Thereafter, she wore them faithfully nearly all of the time.

Boggan visited the Respondent's office on one or two occasions thereafter to

have the frames adjusted. Other than that, she had no further contact with the

Respondent.

5. Except for the tinting, things appeared the same to Boggan with or

without the glasses. Nonetheless, she continued to wear them until May, 1982.

At that time, she was working as a proofreader and was having the same symptoms

she experienced before, only more profoundly. A coworker suggested that she

visit an ophthalmologist. She visited an ophthalmologist on May 21, 1982. The

ophthalmologist examined her and the glasses that had been prescribed by

Respondent. He concluded that she had a muscle control problem which he called

"convergence insufficiency." He advised her that the glasses were of no benefit

to her, and he sent her to an orthoptist, a person trained in treating eye

muscle problems. The orthoptist prescribed an eye muscle exercise program.

Boggan has followed the program, albeit not vigorously, and has observed some

lessening of the sumptoms she experienced.

6. The Respondent's testimony about his examination of Boggan is not

supported by his own records, and his testimony about it has not been deemed

credible. The Respondent did determine that she exhibited slight farsightedness

and a slight astigmatism. He determined that she had a slight exophoria at

distance, which was nothing to be concerned about, and a normal vertical phoria

at distance. The Respondent did some near point testing to determine near point

phorias and the accommodative capacity, which he determined to be normal.

7. The Respondent utilized a "fogging technique" to determine the maximum

amount of plus lens that Boggan could utilize, both distance and near, without

experiencing blurry vision. He determined that she could wear a .12 diopter

lens on her right eye and a .37 diopter lens on her left eye without

experiencing blurriness. A "diopter" is a measurement of the refractive

correction in a lens. The Respondent sold Boggan glasses with that

prescription. He did not suggest the need for any follow-up visits.

8. Generally, lenses with a refractive correction of diopter or less

are considered low power lenses. Lenses of .12 diopter and .37 diopter are

very low power lenses which offer very little corrective value. Except for the

tint in the glasses the Respondent sold Boggan, the glasses served no function

at all for her. They did not correct any visual deficiency, nor does it appear

that they were designed to do that. The Respondent prescribed the glasses

solely on the basis of Boggan's complaints that her eyes would get irritated and

drowsy when she read a lot and upon the "fogging test" which determined the

maximum plus lens that she could wear without experiencing blurriness.

9. There is a legitimate difference of opinion among practicing

optometrists as to the value of low plus power glasses. Some optometrists would

never prescribe them; others prescribe them routinely. Whatever the philosophy

of a given optometrist, the prescribing of low plus power glasses would be

justified only if numerous tests were conducted and the results evaluated. A

proper eye examination conducted by an optometrist in 1979 in Gainesville,

Florida, would have begun with the taking of the patient's medical history and a

consideration of the patient's complaints. The patient's visual acuity would be

measured to get an objective determination of refractive error. Muscle balance

is tested either through a "cover test," or through "phorias" to determine the

position of one eye relative to the other. This is done at distance, infinity

and at near. If these findings are normal, a "vertical phoria" is done to

determine the position of the eyes in a vertical position, as opposed to a

horizontal position. The "amplitude of accommodation" is then tested by

changing lenses in front of the patient's eyes and making the patient focus, or

by having the patient fixate on small print and moving it toward the patient and

asking him when it gets blurry. An "ophthalmoscopy" is conducted to observe the

inside of the eye, and the outside is observed. A "slit lamp examination" is

conducted to evaluate the interior portion of the eyes, the cornea, the iris and

the lens. A tonometry is done to measure the pressure inside the eye. A "cover

test" is also used to determine whether there is any area in the patient's field

of vision where he cannot see.

10. The minimum procedures for a vision analysis conducted by an

optometrist have been prescribed by a rule adopted by the Department of

Professional Regulation, Board of Optometry. Rule 210-3.07, Florida

Administrative, Code, prescribes these minimum procedures. The rule was not in

effect at the time that the Respondent conducted his examination of Boggan. The

minimum procedures set out in the rule are, however, in concert with the minimum

standards followed by optometrists in the State of Florida, including

Gainesville, Florida, during 1979. The Respondent's examination and

prescription of glasses for Boggan did not comport with these minimum

requirements.

11. An organization known as the Optometric Extension Program ("OEP")

advocates the prescription of low plus power glasses. The Respondent is a

member of that organization and agrees with its philosophy. To justify a low

power prescription under the OEP theory, numerous near point tests need to be

conducted. The results of these tests are placed in a formula, and a

prescription is determined based upon the formula. The Respondent did not

arrive at his prescription for Boggan in this manner. The prescribing of very

low power glasses based solely upon a patient's complaints and upon a "fogging

test" is not in accord with the OEP system. If the results of other tests show

no abnormalities as they did for Boggan insofar as the tests were conducted,

there would be no justification other than a commercial one for prescribing

glasses and selling them. The prescribing and selling of glasses to Boggan does

not comport with generally accepted and prevailing standards of optometric

practice in Florida and specifically in Gainesville, Florida, at the present or

at the time that the Respondent examined and prescribed glasses for Boggan.

Prescribing glasses in that manner constitutes incompetence and misconduct in

the practice of optometry.

12. The manner in which the Respondent prescribed glasses for Karilyn

Boggan was not an isolated occurrence in the Respondent's practice. The

Respondent would conduct the same sort of examination and, with the same

complaints and the same test results, issue the same prescription today. It is

the sort of examination and prescription that the Respondent routinely makes in

his practice.

13. A "probable cause panel" of the Florida State Board of Optometry was

convened to consider whether an administrative complaint should be issued in

this matter. The panel determined that probable cause existed to justify

issuing an administrative complaint against the Respondent. The attorney who

prosecuted this matter on behalf of the Department of Professional Regulation

appeared at the probable cause panel meeting. The attorney made recommendations

to the panel, some of which were followed. It does not appear that the attorney

was providing legal services to the probable cause panel, but rather that he was

making recommendations as a prosecutor. To the extent that his recommendations

could be considered the providing of legal services to the panel, it does not

appear that the fairness of the probable cause proceeding nor the correctness of

the action they took was impaired.

14. During 1978, the Board of Optometry issued an Administrative Complaint

against the Respondent in a different proceeding. The attorneys for the Board

and the attorney for the Respondent entered into a stipulation through which the

Respondent agreed to reimburse a patient; that the charges against him, if true,

constituted unprofessional conduct; to pay a fine and costs; and to submit to a

period of probation for one year. The stipulation was executed on January 26,

1979. The file before the Division of Administrative Hearings was closed based

upon the stipulation. It does not appear that the Board of Optometry ever

approved the stipulation, nor that the Respondent actually paid the fine, nor

that the period of probation ever commenced. It cannot be determined, based

upon the evidence presented, whether the Respondent was on probation at the time

that he examined Karilyn Boggan.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this proceeding. Sections 120.57(1), 120.60,

Florida Statutes.

16. During the course of the proceeding, the Respondent moved to strike

allegations in the Administrative Complaint that charged a violation of Section

463.016 (1)(n) , Florida Statutes. It appears that the probable cause panel

that considered whether a complaint should be issued against the Respondent

determined that probable cause existed to charge a violation of Section

463.016(1)(g), Florida Statutes. No determination was made with respect to

Section 463.016(1)(n). A license revocation proceeding is required to be based

upon a probable cause determination made by a probable cause panel of a

pertinent regulatory board. Section 455.225, Florida Statutes. Since no

probable cause was ever determined with respect to a violation of Section

463.016(1)(n), Florida Statutes, the allegation in the Administrative Complaint

of a violation of that provision was inappropriate. Accordingly, the motion to

strike was granted by Order issued June 3, 1983.

17. The Administrative Complaint charges that the Respondent's conduct

with respect to the examination and treatment of Karilyn Boggan violated the

provisions of Section 463.016(1)(g), Florida Statutes. The Section provides

that fraud or deceit, negligence or incompetency, or misconduct in the practice

of optometry constitutes grounds for which disciplinary action can be taken

against a licensed optometrist. The Respondent's treatment and prescription of

very low power glasses to Karilyn Boggan constitutes incompetency and misconduct

in the practice of optometry. The examination that the Respondent conducted and

the tests that he administered to the patient Boggan do not justify the

prescription the Respondent issued. It could not be determined from the

Respondent's examination that Boggan would have benefited from the prescription.

The Respondent's examination actually revealed that Boggan did not need glasses.

18. The Respondent has contended that his prescription of low plus power

glasses is reflective of a philosophical difference between optometrists who

believe that such glasses are helpful and optometrists who believe otherwise,

The fact that a mode of treatment has not received endorsement by a majority of

a regulated profession does not in itself justify a conclusion that prescribing

the treatment would constitute incompetency or misconduct. Rogers v. Board of

Medical Examiners, 371 So.2d 1037 (1 DCA Fla. 1979). While there is a

philosophical difference that exists in the field of optometry as to the value

of low plus power glasses, the Respondent's prescription to Boggan is not

reflective of that controversy. Rather, the Respondent's prescription is

reflective of a sale of glasses to a patient without justification.

19. Respondent has contended that the Administrative Complaint should be

dismissed because of irregularities that occurred during proceedings conducted

by the probable cause panel of the Board of Optometry that considered whether an

administrative complaint should be issued against the Respondent. This

contention is not supported by the evidence. It is inappropriate for a probable

cause panel to receive legal services with respect to a matter from an attorney

who is employed by the Department of Professional Regulation to prosecute the

matter. Section 455.221(2), Florida Statutes; Department of Professional

Regulation v. LeBaron, Case No. 82-1863 before the Division of Administrative

Hearings (Order of Dismissal entered December 8, 1982). While it does appear

that the attorney employed to prosecute this matter made recommendations to the

probable cause panel, it does not appear that he provided legal services. To

the extent that he did, it does not appear that the fairness of the proceeding

or the correctness of the action taken by the panel was impaired. Dismissing

the complaint would therefore be inappropriate. Section 120.68(8), Florida

Statutes.

20. Section 463.016(2), Florida Statutes, provides that when the Board of

Optometry finds a licensee guilty of misconduct, it may impose one or more of

the following penalties:

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine

not to exceed $1,000 for each count or

separate offense.

(d) Issuance of a reprimand.

(e) Placement of the optometrist on probation

for a period of time and subject to such

conditions as the board may specify . .

In determining what penalty should be imposed upon the Respondent for his

violation of the provisions of Section 463.016(1)(g) Florida Statutes, it is

appropriate to consider the gravity of the violation and the fact that the

violation does not appear to he an isolated occurrence, but rather reflects the

manner in which the Respondent conducts examinations and issues prescriptions.

The Petitioner has contended that it should be further considered that the

Respondent was on probation at the time that the violation occurred. This

contention is not supported by the evidence. A suspension of the Respondent's

license for a period of six months and an administrative fine. in the amount of

$1,000 is an appropriate penalty.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

hereby,

RECOMMENDED:

That the Board of Optometry enter a final order finding the Respondent,

John T. Beckum, O.D., guilty of violating the provisions of Section

463.016(1)(g), Florida Statutes, as alleged in the Administrative Complaint;

suspending the Respondent's license to practice optometry for a period of six

months; and imposing a fine in the amount of $1,000 against the Respondent.

RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida.

___________________________________

G. STEVEN PFEIFFER

Division of Administrative Hearings

Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this day of 19th day of August, 1983.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Stephen Marc Slepin, Esquire

Slepin, Slepin, Lambert & Waas

1114 East Park Avenue

Tallahassee, Florida 32301

Mr. Fred Roche

Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Ms. Mildred Gardner

Executive Director

Board of Optometry

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF OPTOMETRY

DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

vs. CASE NO. 83-527

JOHN T. BECKUM, O.D.,

Respondent.

____________________________/

FINAL ORDER

This cause came before the Board of Optometry on September 10, 1983 in

Tallahassee, Florida for consideration of a Recommended Order entered August 19,

1983 by Hearing Officer G. Steven Pfeiffer. Pursuant to its consideration of

the Recommended Order the Board hereby:

1. Rejects the exceptions as set forth by Respondent in each paragraph of

Respondent's exceptions to the Recommended Order.

2. Adopts the Findings of Fact as set forth in the Recommended Order.

3. Adopts the Conclusions of Law as set forth in the Recommended Order.

4. Reduces the recommended penalty set forth in the Recommended Order from

payment of a $1,000.00 fine and six months suspension of license to payment of a

$1,000.00 fine only.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT:

Respondent pay an administrative fine in the amount of $1,000.00, such fine

to be paid to the Department of Professional Regulation within 30 days from

rendition of this Order.

Respondent may appeal this Final Order within 30 days from rendition

pursuant to the Florida Rules of Appellate Procedure and Section 120.68, F.S.

DONE and ORDERED this 28th day of September, 1983.

FLORIDA BOARD OF OPTOMETRY

By :_________________________

Dr. Frank J.Altieri , O.D.

Chairman

cc: Joseph W. Lawrence, II, Esquire

Stephen Marc Slepin, Esquire