STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 79-2136
)
JOSEPH WAGNER, D.C., )
)
Respondent. )
)
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on March 21, 1980, in Daytona Beach, Florida. The following appearances were entered: George S. Reynolds, III, Tallahassee, Florida, for the Petitioner, Board of Chiropractic Examiners; and J. David McFadden, Daytona Beach, Florida, for the Respondent, Joseph Wagner, D.C.
On or about September 27, 1979, the Board of Chiropractic Examiners issued an administrative complaint against Joseph Wagner, D.C. It is therein alleged that the Respondent engaged in sexual misconduct in the practice of chiropractic in connection with his treatment of a patient, Judith Matovina. The Respondent requested a formal hearing, and the Board filed the matter in the office of the Division of Administrative Hearings on October 25, 1979. The final hearing was originally scheduled to be conducted on January 18, 1980, and upon joint stipulation of the parties was continued and rescheduled as set out above.
At the final hearing, the Board called the following witnesses: Dr. Walter
C. Aikens, a chiropractor who practices in Daytona Beach, Florida; and Judith Matovina. The Respondent called the following witnesses: Julia Susan Vance, a patient of the Respondent; Angela Smigiel, a patient of the Respondent; Dr. Fernando Stern, a physician who specializes in adult and legal psychiatry; Jane
N. Wagner, the Respondent's wife; John C. Kieffer, a chiropractor who practices in Daytona Beach, Florida; Harry W. Scanlon, the Director of the Volusia County Better Business Bureau; and the Respondent. Respondent's Exhibits l through 5 and 8 were offered into evidence and were received. Respondent's Exhibits 6 and
7 were offered and rejected. Official recognition was taken of the provisions of the Florida Administrative Code relating to the practice of chiropractic.
The parties have submitted post-hearing legal memoranda and proposed findings of fact, conclusions of law, and recommended orders.
FINDINGS OF FACT
The Respondent is a chiropractic physician who practices in Daytona Beach, Florida, and is licensed by the State Board of Chiropractic Examiners to
practice in the State of Florida. The Respondent opened the office where he presently practices in September, 1978.
On or about July 10, 1979, Judith M. Matovina telephoned the Respondent's office regarding severe headaches which she had been suffering. She had been referred to the Respondent by a friend, Michael Davis, who was studying to be a chiropractor, and who was also a friend of the Respondent. An appointment was initially made for Thursday, July 12; Ms. Matovina preferred to make an appointment for a time that would not interfere with her job, and an appointment was ultimately made for 10:30 a.m. on Saturday, July 14, 1979. Ms.
Matovina arrived at the Respondent's office for her appointment at the scheduled time. She sat in the waiting room for approximately five minutes. Dr. Wagner came out to the waiting room after he treated another patient and introduced himself to Ms. Matovina. He gave her a pamphlet to read regarding the treatment of headaches by chiropractors, and a form to fill out which provided personal background and a description of symptoms. She filled out the form and handed it to the Respondent who escorted her to the examination room. He asked her questions about her headaches and about her personal life. She responded that she did not believe the headaches were tension related. He told her to remove her clothes and put on a gown. He left the examination room. Ms. Matovina removed her bra and blouse, but left her slacks and shoes on. After knocking, the Respondent reentered the examination room.
The Respondent thereafter engaged in conduct, a portion of which was legitimate and proper chiropractic examination, treatment and therapy; and a part of which can only be construed as an effort to induce Ms. Matovina to engage in sexual activity with the Respondent. He engaged in conversation about his poor relationship with his wife, his relationships with his girlfriends, and the fact that he had had a vasectomy. Ms. Matovina had not been to a chiropractor before, and she expressed fear as to the nature of some of the manipulations and other treatment which the Respondent performed. He referred to her as "such a baby" in response to her fear. He examined her eyes, and told her that she had pretty blue eyes and that his girlfriends had brown eyes. Ms. Matovina asked him where his receptionist was, and the Respondent responded that he did not have a receptionist on Saturday because that is when he scheduled his pretty patients. During the course of one manipulation in which the Respondent held Ms. Matovina's feet, he told her that she had cute feet. In the course of one manipulation in which the patient stood against the wall with the Respondent's arm around her waist, he told her, "They are playing our song," in response to the music on the office stereo system. He held her hand as if he was going to dance with her. He kissed her twice on the shoulder, moved his hand toward her breast, and brushed his hand across her breast.
Several times during the course of the examination, Ms. Matovina said that it would be best for her to leave, but the Respondent kept saying that they should try one more manipulation or therapy treatment.
Ms. Matovina protested during the course of much of the treatment, and eventually insisted upon getting dressed and leaving. During the examination, the Respondent on several occasions referred to Ms. Matovina's "pretty blue eyes," to the fact that she was "such a baby," to the fact that he had other girlfriends, and a vasectomy. After she got dressed, the Respondent behaved as though none of these things had happened. Ms. Matovina insisted upon paying for the session at that time rather than the following Monday, when the Respondent wanted to schedule another session. Ms. Matovina then left the office. She was there for approximately two hours. The following week, the Respondent had his
office contact Ms. Matovina to schedule further sessions, but she refused to accept or to respond to the phone calls.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), 120.60, Florida Statutes (1979)
Section 460.413(1), Florida Statutes, provides in pertinent part as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(w) Violating any provision of this chapter, any rule of the board or depart- ment, or a lawful order of the board or department previously entered in a disci- plinary proceeding or failing to comply with a lawfully issued subpoena of the department.
Section 460.412, Florida Statutes, provides:
The chiropractic physician-patient rela- tionship is founded on mutual trust.
Sexual misconduct in the practice of chiropractic shall mean violation of the chiropractic physician-patient relation- ship through which the chiropractic Physi- clan uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the
scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of chiropractic is prohibited.
A violation of Section 460.412 would constitute a violation of Section 460.413(1)(w), and would justify the taking of disciplinary action as specified in Section 460.413(2)
The Respondent's conduct in examining and treating Judith Matovina constituted sexual misconduct in the practice of chiropractic. The Respondent attempted to induce his patient to engage in sexual activity with the Respondent. The sexual activity was outside the scope of generally accepted examination or treatment of the patient.
The resolution of this matter involves a credibility choice between the testimony of Judith Matovina and the testimony of the Respondent. Neither witness's testimony is corroborated, to any significant or pertinent extent by other evidence. In resolving the conflicts in the testimony, regard has been given to the demeanor of the witnesses as displayed at the final hearing, the motivations that the witnesses might have to testify falsely, and the extent to
which the witnesses testimony is corroborated by other evidence. As to the testimony of Judith Matovina, there are minor discrepancies between the testimony she gave at the final hearing, the testimony that she gave during a deposition that was taken in connection with this proceeding on November 27, 1979, and an affidavit which was composed by Ms. Matovina on the Monday following July 14, the date that she visited the Respondent's office. The discrepancies are not significant. It was apparent at the hearing that Ms.
Matovina was extremely upset about the matter. She cried several times during the course of giving testimony, and she lost composure. Given the depth of emotion that she felt, it is not to be unexpected that there would he minor discrepancies in her testimony, and the discrepancies are not of a sort which would indicate that the witness is engaged in the giving of false testimony.
Indeed, no motivation for the giving of false testimony by the witness Judith Matovina is apparent. Her testimony has been credited.
The testimony of the Respondent has not been found to be credible. He clearly has a motive for testifying untruthfully about what occurred during his examination and treatment of Judith Matovina. Numerous of the matters which the witness Matovina construed as sexual overtures would not necessarily have been such. For example, the manipulation during which the Respondent had her in a position against a wall similar to a dancing position is a legitimate chiropractic manipulation, which other chiropractors who testified at the hearing stated they would utilize with a patient who was suffering from headaches. The same can be said of other manipulations and therapy techniques utilized by the Respondent. While the manipulations themselves would not constitute sexual overtures, even if they could be mistaken as such, taken together with the conversation that the Respondent engaged in about the patient's pretty eyes and cute feet, and about his girlfriends, the legitimate chiropractic treatments took on a definite sexual connotation to Ms. Matovina, and that is understandable. Certainly the fact that the Respondent kissed his patient on more than one occasion, and brushed his hand against her breast can only be taken as efforts to utilize the chiropractic treatment to seduce the patient.
Section 460.413(2) provides:
When the board finds any person guilty of any of the grounds set forth in sub- section (1) it may enter an order imposing one or more of the following penalties:
Refusal to certify to the department an application for licensure.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine
not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the chiropractic physi- cian on probation for a period of time and subject to such conditions as the board may specify, including requiring the chiro-
practic physician to submit to treatment, to attend continuing education courses, to submit to re-examination, or to work
under the supervision of another chiro- practic physician.
In its proposed recommended order, the Board has suggested that the Respondent's license be suspended for a period of not less than three months, and upon restoration of the license that a third party be required to be present during treatment of female patients. The Respondent's conduct justifies a more severe penalty than that, but permanent revocation would be overly harsh. It does not appear that the Respondent's conduct was other than an isolated incident. Two other female patients of the Respondent testified that he had not ever approached them improperly. It appears that the Respondent, other than this incident, enjoys a good reputation as a chiropractor and as a member of the business community in Daytona Beach. There was psychiatric testimony in the record that the Respondent does not suffer from any psychiatric or personality disorder that would give him a particular propensity to engage in this sort of conduct.
The parties have submitted proposed findings of fact, conclusions of law and recommendations. To the extent that proposed findings and conclusions have not been incorporated into the findings of fact and conclusions of law set out in this Recommended Order, they have been rejected as contrary to the evidence, or not relevant to the issues.
RECOMMENDED ORDER
Based upon the foregoing findings of fact and conclusions of law, it is hereby
That a Final Order be entered by the Department of Professional Regulation, Board of Chiropractic Examiners, suspending the license of the Respondent, Dr.
Joseph Wagner, for a period of six months, and upon restoration of the license that the Respondent be placed on probation for a period of eighteen months subject to the condition that a third party be present during the treatment of female patients by the Respondent during the period of the probation.
RECOMMENDED this 24th day of April, 1980, in Tallahassee. Florida.
G. STEVEN PFEIFFER Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
George S. Reynolds, III, Esquire
103 North Gadsden Street Tallahassee, Florida 32301
J. David McFadden, Esquire
100 Seabreeze Boulevard, Suite 122 Daytona Beach, Florida 32018
Mr. Cromwell A. Hartley, III Executive Director
Board of Chiropractic Examiners Department of Professional Regulation
111 Coastline Drive, East Jacksonville, Florida 32111
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF PROFESSIONS
BOARD OF CHIROPRACTIC
IN RE: JOSEPH WAGNER, D.C.
License No. 3009
Respondent.
/
Case No. 79-2136
FINAL ORDER
THIS MATTER came before the Board of Chiropractic pursuant to section 120.57(3), Florida Statutes, on Thursday, June 5, 1980, in Orlando, Florida, for consideration of the Recommended Order in the case of Department of Professional Regulation, Board of Chiropractic Examiners v. Joseph Wagner, D.C., Case No. 79- 2136, a copy of which is attached hereto and incorporated herein by reference.
Upon consideration of the Recommended Order and Respondent's Exceptions to the Recommended Order, and after a review of the total record in this matter, it is ORDERED:
FINDINGS OF FACT
l. The findings of fact contained in the hearing officer's recommended order are hereby approved and adopted.
CONCLUSIONS OF LAW
Respondent's Exceptions to the Recommended Order are denied.
The conclusions of law contained in the hearing officer's recommended order are hereby rejected in toto.
The findings of fact do not establish as a matter of law that the Respondent, Joseph Wagner, D.C., is guilty of sexual misconduct in the practice of chiropractic by having used the chiropractic physician - patient relationship to induce or attempt to induce, engage or attempt to engage the patient in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient contrary to sections 460.4l3(1)(w) and 460.412, Florida Statutes.
WHEREFORE, it is ORDERED AND ADJUDGED that the complaint be dismissed and that no further action be taken against the license of the Respondent.
DONE AND ORDERED this 30th day of June, 1980.
Dr. Ron Harris, D.C. Chairman
Board of Chiropractic
This is to certify that this Final Order was received in the Office of the Board of Chiropractic on JULY 10, 1980 at 10:00 a.m.
=================================================================
AMENDED AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF PROFESSIONS
BOARD OF CHIROPRACTIC
IN RE: JOSEPH WAGNER, D.C.
License No. 3009
Respondent.
/
Case No. 79-2136
AMENDED FINAL ORDER
THIS MATTER came before the Board of Chiropractic on Thursday, March 4, 1982, in Tampa, Florida for an informal hearing pursuant to the Mandate issued by the First District Court of Appeal in the case of Department of Professional Regulation vs. Wagner, 405 So.2d 471 (Fla. 1st DCA 1981). The First District in Department of Professional Regulation vs. Wagner, supra, reversed the final order previously entered by the Board in this matter and remanded with instructions to reinstate the hearing officer's conclusions of law and to determine an appropriate penalty. The sole issue for determination is the appropriate penalty to be imposed on Respondent.
At the hearing, Petitioner was represented by Tina Hipple, Esquire, and the Respondent was represented by Paul Watson Lambert, Esquire
Upon consideration of the Mandate and opinion issued by the First District in Department of Professional Regulation vs. Wagner, supra, the Petition for Proposed Final Order submitted by the Respondent, the arguments of the parties as to the appropriate penalty, and being otherwise fully advised in the premises the Board amends the final order it rendered on July 10, 1980, to provide as follows:
FINDINGS OF FACT
The findings of fact contained in the hearing officer's Recommended Order are hereby approved and adopted.
CONCLUSIONS OF LAW
Respondent's Exceptions to the Recommended Order are denied.
The conclusions of law contained in the hearing officer's Recommended Order are hereby approved and adopted and the Respondent is found guilty of sexual misconduct in the practice of chiropractic contrary to the provisions of sections 460.412 and 460.413(l)(w), Florida Statutes.
The hearing officer's recommended penalty is rejected and to the extent the Board does not follow the penalties suggested by Respondent's Petition for Proposed Order, they are rejected as not being appropriate.
There is competent, substantial evidence to support the Board's findings of fact and conclusions of law.
WHEREFORE, it is ORDERED AND ADJUDGED that Respondent's Florida chiropractic license is suspended for a period of six (6) months from the date of rendition of this order. However, the suspension is withheld and the Respondent is placed on probation for this six (6) month period which probation is subject to the condition that a third party be present during the treatment of female patients by the Respondent.
DONE AND ORDERED this 25th day of March, 1982.
RON HARRIS, D.C.
Chairman
Board of Chiropractic
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL NOT FINAL UNTIL TIME EXPIRES REGULATION, TO FILE HEARING PETITION AND
DISPOSITION THEREOF IF FILED.
Appellant,
CASE NO. WW-4l3
vs. DOAH CASE NO. 79-2136
JOSEPH WAGNER, D.C.,
Appellee,
/ Opinion filed October 28, 1981.
An appeal to review an order of the Department of Professional Regulation, Board of Chiropractic, Dr. Ron Harris, D.C., Chairman.
Tina Hipple, Assistant General Counsel, Tallahassee, for appellant.
J. David McFadden, Daytona Beach; and Paul Watson Lambert, Tallahassee, for Appellee.
PER CURIAM.
Judith Matovina filed an administrative complaint against Dr. Wagner, a chiropractor, through the Department of Professional Regulation. The complaint alleged that on July 14, 1979, Matovina visited Dr. Wagner for treatment of headaches and that during the treatment Dr. Wagner repeatedly told her she was "such a baby," and told her she was a pretty girl, referring several times to her blue eyes. The complaint further alleged that Dr. Wagner conversed about his relationship with his wife *
* NOTE: PAGE TWO IS MISSING FROM THE OPINION ON FILE WITH THIS DIVISION AND IS THEREFORE NOT A PART OF THIS ACCESS DOUCMENT.
Matovina's breast brushed his hand across her breast. Matovina said several times during the examination that she had better leave, but Dr. Wagner repeatedly suggested one more therapy that might help. The hearing officer further found that Dr. Wagner kissed Ms. Matovina twice and that she finally insisted on dressing and leaving; when she came out to pay her bill Dr. Wagner acted as if nothing had happened. Ms. Matovina insisted on paying for the treatment at that time and left. The following week, Dr. Wagner's office contacted Ms. Matovina in order to schedule further appointments which she refused.
In his conclusions of law, the hearing officer set forth the applicable statutes, stating that a violation of Section 460.412 would constitute a violation of Section 460.413(l)(w) and justify disciplinary action under Section 460.413(2). The hearing officer concluded that Dr. Wagner's conduct constituted sexual misconduct in the practice of chiropractic in that he had attempted to engage a patient in sexual activity outside the scope of generally accepted examination or treatment. The hearing officer stated that the resolution of the case required a credibility choice between Ms. Matovina and Dr. Wagner and that, while he recognized that neither witness's testimony was corroborated by other evidence, considering the demeanor of the witnesses at the final hearing and their possible motivations to give false testimony, he chose to accept Ms.
Matovina's testimony. Further, the hearing officer concluded that some of the treatments which Ms. Matovina construed as having sexual overtones were legitimate. Other chiropractors testified, for example, that they used the positioning against the wall which is similar to a dancing position to treat headaches. The hearing officer further concluded, however, that because of the tenor of Dr. Wagner's conversation, the legitimate manipulations took on definite sexual connotations. In light of this, the fact that Dr. Wagner kissed the patient twice and brushed his hand across her breast could only be taken as an effort to use a chiropractor's position to seduce a patient. The hearing officer recommended that Dr. Wagner's license be suspended for 6 months and that upon restoration of the license, he be placed on probation for 18 months during which a third party would have to be present during *
* NOTE: PAGE FOUR IS MISSING FROM THE OPINION ON FILE WITH THIS DIVISION AND IS THEREFORE NOT A PART OF THIS ACCESS DOUCMENT.
which approached an opinion on agency policy, th Board was not in a good position to reevaluate those particular findings of fact. McDonald v. Dept. of Business and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). An agency may reject a hearing officer's conclusions of law; however, given that the findings of fact were or should have been accepted in the instant case and that those findings are supported in the record, the Board could not logically reach a conclusion contrary to that of the hearing officer as to the legal effect of Dr. Wagner's conduct. The facts as found by the hearing officer clearly constituted a violation of Sections 460.412 and 460.413(l)(w). Cf. Cenac v. Board of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981); Wong v. Career Service Commission, 371 So.2d 530 (Fla. 1st DCA 1979)
We do not find persuasive appellee's argument that some of the hearing officer's findings of fact were improperly labeled and were actually conclusions of law which the Board could reject. Even isolating those findings of fact which might be viewed as conclusions of law, the remaining facts clearly indicate misuse of the chiropractor-patient relationship in the manner found by the hearing officer.
The final order of the Board of Chiropractic is REVERSED and REMANDED with instructions to reinstate the hearing officer's conclusions of law and determine an appropriate penalty.
McCORD and SHIVERS, JJ., and LILES, WOODIE A., (Retired) Associate Judge, CONCUR.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable, Dr. Ron Harris, D.C., Chairman
Board of Chiropractic
Department of Professional Regulation WHEREAS, in that certain cause filed in this Court styled:
IN RE: JOSEPH WAGNER, D.C. Case No. WW-4l3
License No. 3009 Your Case No. 79-2136
The attached opinion was rendered on October 28, 1981
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable Robert P. Smith, Jr., Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 22nd day of December, 1981.
CLERK, DISTRICT COURT of Appeal of Florida,
First District
| Issue Date | Proceedings |
|---|---|
| Oct. 23, 1980 | Final Order filed. |
| Apr. 24, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 28, 1981 | Opinion | |
| Jun. 30, 1980 | Agency Final Order | |
| Apr. 24, 1980 | Recommended Order | Respondent should have license suspended for seducing female patient in violation of statute. |
