White v. State Bd. of Optometry

• Decision Date: 15 October 1996
• Citation: 682 A.2d 404
• Parties: George E. WHITE, III, O.D., Petitioner, v. STATE BOARD OF OPTOMETRY, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 404

682 A.2d 404

George E. WHITE, III, O.D., Petitioner, v. STATE BOARD OF OPTOMETRY, Respondent.

Commonwealth Court of Pennsylvania.

Argued June 11, 1996.

Decided Aug. 19, 1996.

Reargument Denied Oct. 15, 1996.

Michael J. McCaney, Jr., for Petitioner.

Deborah B. Eskin, for Respondent.

Before McGINLEY and KELLEY, JJ., and MIRARCHI, Jr., Senior Judge.

KELLEY, Judge.

George E. White, III, O.D., petitions for review of the adjudication and order of the Pennsylvania State Board of Optometry (board) which suspended his license to practice optometry for thirty days, and imposed a fine of $10,000.00. The board determined that Dr. White had violated sections 7(a)(10) and (11) of the Optometric Practice and Licensure Act (OPLA) ¹ by prescribing therapeutic drugs for patients. We vacate and remand.

The board made the following relevant findings of fact in this case:

1. George E. White, III, O.D., holds license no. OE-005442-P, to practice optometry in the Commonwealth which was originally issued in 1978.

* * * * * *

4. At all times relevant to this proceeding, [Dr. White] held a license to practice optometry in the Commonwealth.

5. From at least June, 1988 until February, 1995 [Dr. White] was a practicing optometrist with the Harleysville Eye Associates in the Commonwealth of Pennsylvania.

6. On April 18, 1991, [Dr. White] prescribed Betagan 5% Ophthalmic Solution, Rx # 786791, to patient "C.B.".

7. On December 8, 1989, [Dr. White] prescribed Decadron Ophthalmic Ointment 3.5g to patient "K.S.".

8. On February 23, 1990, [Dr. White] prescribed Cortisporin Ophthalmic Ointment 3.5g to patient "J.M.".

9. On July 11, 1990, [Dr. White] prescribed Dexamethasone Ophthalmic Ointment 3.5g to patient "J.M.".

10. On August 9, 1990, [Dr. White] prescribed Garamycin Ophthalmic Solution 10cc to patient "R.F.".

11. On September 28, 1990, [Dr. White] prescribed Blephamide Ophthalmic Solution 10cc to patient "C.S.".

12. On September 28, 1990, [Dr. White] prescribed Cyclogyl 1% Ophthalmic Solution to patient "C.S.".

13. On February 21, 1991, [Dr. White] prescribed Blephamide Ophthalmic Solution 10cc to patient "E.F.".

14. On February 27, 1991, [Dr. White] prescribed Neodecadron Ophthalmic Ointment 3.5g to patient "T.Y.".

15. On April 13, 1991, [Dr. White] prescribed Garamycin Ophthalmic Solution to patient "N.S.".

16. On June 6, 1991, [Dr. White] prescribed Tobrex 0.3% Ophthalmic Solution 10cc to patient "H.C.".

17. On July 11, 1991, [Dr. White] prescribed Tobrex Ophthalmic Solution 10cc to patient "M.G.".

18. On August 23, 1991, [Dr. White] prescribed Pred Forte Ophthalmic Solution 10cc to patient "J.H.".

19. On December 4, 1991, [Dr. White] prescribed Blephamide Ophthalmic Solution 10cc to patient "W.G.".

20. Betagan 5% Ophthalmic Solution, Decadron Ophthalmic Ointment 3.5g, Cortisporin Ophthalmic Ointment 3.5g, Dexamethasone Ophthalmic Ointment 3.5g, Garamycin Ophthalmic Solution 10cc, Blephamide Ophthalmic Solution 10cc, Cyclogyl 1% Ophthalmic Solution, Neodecadron Ophthalmic Ointment 3.5g, Garamycin Ophthalmic Solution, Tobrex 0.3% Ophthalmic Solution 10cc, Tobrex Ophthalmic Solution 10cc, and Pred Forte Ophthalmic Solution 10cc, are therapeutic pharmaceutical agents.

21. [Dr. White] signed pads of blank prescriptions which he kept at the front desk so that if he were busy and couldn't fill out a prescription, one of the people behind the desk would fill it out.

22. Sometimes [Dr. White] filled out the medication information on a prescription; at other times, assistants, students or residents did so.

23. Everyone in [Dr. White]'s office is under his supervision.

Board's Adjudication and Order, pp. 9-11.

As a result, in 1991 a complaint was filed with the Pennsylvania Bureau of Professional and Occupational Affairs (bureau) regarding Dr. White's prescribing therapeutic drugs to patients. On February 17, 1994, the chief prosecutor with the bureau, acting for the board, filed a notice and order to show cause alleging that Dr. White had prescribed therapeutic drugs in violation of section 7(a)(10) of the OPLA, 63 P.S. § 244.7(a)(10).

Dr. White filed a timely answer denying the charges and raising a number of affirmative defenses. Specifically, Dr. White alleged that, at the times alleged, he was in practice with a physician authorized to prescribe medication, the prescriptions were actually made by the physician after communication with Dr. White, confirmation by the physician and/or review of the patient's chart by the physician. Thus, the prescription and the actions of Dr. White were supervised by the physician.

On January 23, 1995, an amended notice and order to show cause was filed by the bureau which alleged that Dr. White had improperly prescribed therapeutic medication on an additional nineteen occasions. Dr. White filed a timely answer again denying the charges.

Dr. White also filed a motion to dismiss, alleging that the board did not authorize the issuance of the order to show cause, and that the bureau's prosecuting attorney lacked the authority to issue the order to show cause. The bureau filed a memorandum and answer maintaining that sections 3(b)(17) and 4 of the OPLA, 63 P.S. §§ 244.3(b)(17) and 244.3a, and the Commonwealth Attorneys Act ² permit the bureau to initiate actions against those licensed by the board.

Dr. White filed another motion to dismiss, alleging that the case had been improperly continued over his objection, and that the amended order to show cause was defective because the prosecuting attorney did not provide him with copies of the prescriptions underlying the charges. The prosecuting attorney for the bureau filed a timely answer to the motion.

On February 8, 1995, a hearing was conducted by the board. After the testimony had concluded, the bureau entered a motion to amend the order to show cause to allege that Dr. White had also violated section 7(a)(11) of the OPLA, 63 P.S. § 244.7(a)(11). On October 11, 1995, the board issued its adjudication and order finding that Dr. White had violated both sections 7(a)(10) and (11) of the OPLA, 63 P.S. §§ 244.7(a)(10) and (11), by writing prescriptions for therapeutic medications in 1988, 1989, 1990 and 1991. Dr. White then filed the instant petition for review in this court.

On appeal, Dr. White claims: ³ (1) the board abused its discretion by allowing the further amendment of the orders to show cause to include the alleged violations of section 7(a)(11) of the OPLA, 63 P.S. § 244.7(a)(11), after the record had been closed and he had not been provided with prior notice; (2) the board's determination that he "prescribed" therapeutic medications is not supported by substantial evidence sufficient to demonstrate a finding of violations of section 7(a)(10) and (11) of the OPLA, 63 P.S. §§ 244.7(a)(10) and (11); (3) sections 7(a)(10) and (11) of the OPLA, 63 P.S. §§ 244.7(a)(10) and (11), are unconstitutionally vague and unenforceable against him; (4) the disciplinary action against him on the charges alleging violations of the OPLA should have been barred due to laches; (5) the prosecutor with the bureau did not have the authority to issue the orders to show cause alleging violations of the OPLA; (6) the board abused its discretion by imposing a penalty which is grossly disproportionate to the acts complained of in the orders to show cause; (7) the board erred in precluding the admission of patient charts offered as evidence by him in his defense of the charges; and (8) the proceedings against him were improper as the hearing was conducted before the board without a quorum and the board's minutes do not demonstrate that the voting members of the board who were not present at the hearing read the record of the hearing before voting.

We initially note that in appeals from the board, it is this court's duty to affirm the board's decision unless we find that it violates the appellant's constitutional rights, that it is not in accordance with the law, or that any of the necessary findings of fact are not supported by substantial evidence. Hartman v. State Board of Optometrical Examiners, 71 Pa.Cmwlth. 110, 454 A.2d 1150 (1983). In addition, it is axiomatic that matters of credibility and evidentiary weight are within the exclusive discretion of the board as the fact finder below, and are not within our scope of review. Id.

In this appeal, Dr. White first claims that the board abused its discretion by allowing the further amendment of the orders to show cause to include the alleged violations of section 7(a)(11) of the OPLA after the record had been closed and he had not been provided with prior notice.

As noted infra, the original and amended orders to show cause issued by the bureau alleged that Dr. White had violated section 7(a)(10) of the OPLA. After all of the testimony had been introduced at the hearing, the bureau requested that the orders be further amended to include Dr. White's alleged violation of section 7(a)(11) of the OPLA as well. (N.T., ⁴ p. 293-94). The bureau requested the amendment based on Dr. White's testimony at the hearing. Id. Counsel for Dr. White objected to the amendment. Id. The board deferred ruling on the proposed amendment, and directed the parties to address this issue in their post hearing briefs which were to be filed with the board. (N.T., p. 294).

Section 35.49 of the General Rules of Administrative Practice and Procedure permits the amendment of pleadings in administrative proceedings and reads, in pertinent part, as follows:

§ 35.49. Amendments to conform to the evidence.

(a) When, at a hearing, issues not raised by the pleadings are introduced by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings. The amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these new issues may be made upon motion of a participant at any time during the hearing. If evidence upon the new issues...