Full Decision
This matter was heard by a panel of the Discipline Committee of the College of Optometrists of Ontario on February 27, 2013.
Allegations and Evidence
The allegations in respect of the Member’s conduct were as follows:
1. Dr. Klundert made a misrepresentation with respect to treatments or devices provided to patients contrary to paragraph 11 of s.1(1) of Ontario Regulation 859/93;
2. Dr. Klundert recommended or provided unnecessary diagnostic or treatment services to patients contrary to paragraph 16 of s. 1(1) o f Ontario Regulation 859/93;
3. Dr. Klundert caused or permitted, directly or indirectly, a publication that has a relation to or a bearing on his practice that is false or deceptive by reason of inclusion or omission of information contrary to clause ii of paragraph 25 of s. 1(1) of Ontario Regulation 859/93;
4. Dr. Klundert caused or permitted, directly or indirectly, a publication that has a relation to or a bearing on his practice that could be regarded by the profession as demeaning the integrity or dignity of the profession or being likely to bring the profession into disrepute contrary to clause x of paragraph 25 of s. 1(1) of Ontario Regulation 859/93;
5. Dr. Klundert failed to make and maintain records as required by the regulations with respect to patients contrary to paragraph 27 of s. 1(1) of Ontario Regulation 859/93;
6. Dr. Klundert signed or issued, in his professional capacity, a certificate, report or similar document that contains a statement he knew or should have known was false, misleading or otherwise improper, or withheld statements or information that he knew or ought to have known should have been disclosed with respect to patients contrary to paragraph 29; of s. 1(1) Ontario Regulation 859/93;
7. Dr. Klundert submitted accounts for services rendered to patients that he knew or should have known were false or misleading contrary to paragraph 32 of s. 1(1) of Ontario Regulation 859/93;
8. Dr. Klundert failed to issue a statement or receipt to a patient or to a third party responsible for the payment of the account of patients contrary to paragraph 35 of s. 1(1) of Ontario Regulation 859/93;
9. Dr. Klundert issued a statement or receipt which did not itemize the services provided and the fees charged, describe the ophthalmic appliances utilized in the performance of the services, or set out the commercial laboratory cost incurred by him in the provision of the services to patients contrary to paragraph 36 of s. 1(1) of Ontario Regulation 859/93;
10. Dr. Klundert charged or received payment for contact lenses or eyeglasses in excess of the commercial laboratory cost incurred by him in the provision of the service to patients contrary to paragraph 37 of s. 1(1) of Ontario Regulation 859/93;
11. Dr. Klundert charged or received more than the amount payable to an insured person under the Ontario Health Insurance Plan for the insured service with respect to patients contrary to paragraph 38 of s. 1(1) of Ontario Regulation 859/93; and
12. Dr. Klundert engaged in conduct or performed an act that, having regard to all the circumstances, would reasonable be regarded by members as disgraceful, dishonourable, unprofessional or unethical contrary to paragraph 53 of s.1(1) of Ontario Regulation 859/93.
Dr. Klundert admitted to the allegation set out in paragraph 3 of the Amended Notice of Hearing. It was further advised that the College was withdrawing the allegations set out in paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, and 12.
Dr. Klundert pled guilty to the allegation set out in paragraph 3 of the Amended Notice of Hearing.
It was alleged in paragraph 3 that Dr. Klundert committed an act of professional misconduct in that he breached paragraph 1(1)25 of Ontario Regulation 859/93, as amended, made under the Optometry Act, 1991, S.O. 1991, c. 35, in that he caused or permitted, directly or indirectly, a publication that has a relation or bearing on his practice that is false or deceptive by reason of inclusion or omission of information.
The salient facts from the Agreed Statement of Facts and the three Schedules attached to the Agreed Statement of Facts are as follows:
1. Dr. Klundert practises in Windsor from his optometric practice at 2849 Howard Avenue. Adjacent to his practice, at 2851 Howard Avenue, is Ambassador Eyewear.
2. The College received a complaint in May 2009 from Green Shield Canada that Dr. Klundert had placed a sign in front of his practice indicating “Free Eye Exam with Glasses”.
3. Dr. Klundert acknowledged that he ran the advertisement on a number of occasions between 2005 and 2009; however, as soon as he was alerted to the complaint by Green Shield Canada, the advertisement was removed.
4. During the time in and around May 2009 that Dr. Klundert was displaying the advertisement, he performed 25 eye examinations on the patients listed at Appendix “E” to the Amended Notice of Hearing and submitted accounts for each of those 25 patients to Green Shield Canada.
5. Dr. Klundert did not intend to provide free eye examinations to those patients who had insurance coverage; however, he admitted that the eye examinations for the 25 patients in question were billed to Green Shield Canada.
After reviewing the Agreed Statement of Facts and the Schedules to the Agreed Statement of Facts with the Panel, the Panel found Dr. Klundert guilty of professional misconduct as set out at paragraph 1(1)25 of Ontario Regulation 859/93.
Finding
The Panel unanimously found that the facts set out in the Agreed Statement of Facts proved that Dr. Klundert was guilty of professional misconduct as set out in paragraph 3 of the Amended Notice of Hearing.
Although Dr. Klundert intended to charge for eye exams for patients who have insurance coverage for eye exams, the sign omitted this information. Members of the public would have been deceived by this sign because it appeared as though all eye exams would be free with glasses. Accordingly, the sign that Dr. Klundert used for his practice was false and deceptive contrary to paragraph 1(1)25 of Ontario Regulation 859/93.
Finding on Penalty
The Panel unanimously accepted the Joint Penalty Submission and ordered as follows:
1. That Dr. Klundert be reprimanded; and
2. That Dr. Klundert pays the College’s costs of $25,000.
At the conclusion of the hearing, Dr. Klundert waived his right of appeal and received the reprimand from the Discipline Panel. The reprimand was done in public but it was not recorded.