STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 82-726

)

JACK KAHN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on July 28, 1982, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Staff Attorney

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

For Respondent: Paul Watson Lambert, Esquire

1114 East Park Avenue Tallahassee, Florida 32301

By Administrative Complaint, filed January 20, 1982, Petitioner, Department of Professional Regulation, Board of Chiropractic ("DPR" or "Petitioner"), seeks to suspend, revoke or otherwise discipline the license of Respondent, Jack Kahn ("Respondent"), for allegedly causing to be prescribed, dispensed, or administered a medicinal drug, and practicing or offering to practice beyond the scope of practice permitted by law, in violation of Section 460.413(1)(q) and

1. Florida Statutes.

   
   

   Final hearing in this cause was scheduled for July 28, 1982, by Notice of Hearing dated June 21, 1982. At the final hearing, Petitioner called Paul Louis Doering, Lawrence Greisdorf, and James R. Golden as its witnesses. Petitioner offered Petitioner's Exhibits 1 through 14, inclusive, each of which was received into evidence. Respondent testified in his own behalf, and called Cheryl Kendall, Herbert Hinton, Robert M. Hodel, and William B. Hawkins as witnesses. Respondent offered Respondent's Exhibits 1 through 11, each of which was received into evidence.

   
   

   Both counsel for Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have

   been specifically rejected as either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is a chiropractic physician licensed in the State of Florida, having been issued license No. 0001050. Respondent's office is located at 920 North Federal Highway, Hollywood, Florida.

      
      

   2. On July 31, 1980, Evelyn Yaxley, an elderly resident of Hollywood, was initially seen as a patient by Respondent. During that first visit, Respondent took a patient history, performed an examination, and administered a complete blood count and a urine test. He also dispensed to Mrs. Yaxley a bottle of Baldrian, a natural muscle relaxant, together with some vitamins. Respondent also performed an adjustment to Mrs. Yaxley's coccyx. At the end of the visit, Mrs. Yaxley was given a bill for $102.00 for Respondent's services, which she and her husband paid before leaving the office.

      
      

   3. On August 5, 1980, Mrs. Yaxley returned to Respondent for her next scheduled appointment, and was again accompanied by her husband. During the visit, Respondent informed Mrs. Yaxley that she had a urinary tract infection, which Respondent diagnosed partially from the laboratory test results obtained from the urine test taken on her previous visit. During the second visit, Mrs. Yaxley was taken into a treatment room where Respondent administered another adjustment. Dr. Kahn then left the treatment room and, in the presence of the patient's husband, instructed a receptionist who worked in his office to give Mrs. Yaxley four Azo Gantrisin tablets. The receptionist then entered the treatment room and gave four Azo Gantrisin tablets to Mrs. Yaxley, which Mrs. Yaxley took. At some point attendant to the administration of the Azo Gantrisin tablets, the Yaxleys questioned the Respondent about the advisability of administering Azo Gantrisin inasmuch as Mrs. Yaxley was sensitive to "sulfa drugs." The Yaxleys were assured, however, by Dr. Kahn that though the tablets were a sulfa drug derivative, they would be safe for her to take. The Yaxleys were then given, at Respondent's direction, a bottle of Azo Gantrisin tablets and instructed to have Mrs. Yaxley take two tablets every four hours. The Yaxleys paid Respondent $40.00 for his services rendered during the second visit.

      
      

   4. Azo Gantrisin is a product of two chemical entities, Phenaxopyridine and Sulfisoxazole, and is commonly referred to as a "sulfa drug." The drug is prescribed for treatment of urinary tract infections. Azo Gantrisin can cause adverse drug reactions, which are defined as any unintended or unexpected noxious effects that alter the structure or function of the body. Adverse drug reactions include allergic reactions, such as scratching, itching, swelling, and rashes. Other adverse drug reactions include swelling of the skin, difficulty in breathing, nausea, and vomiting.

      
      

   5. After the Yaxleys' visit to Respondent's office on August 5, 1980, they returned home, and later that same day Mrs. Yaxley took an additional dosage of Azo Gantrisin tablets in accordance with Respondent's instructions. Shortly thereafter, she became ill, experiencing severe nausea and vomiting. These symptoms continued throughout the night and into the next day. On the morning of August 6, 1980, Mrs. Yaxley was treated by her family physician for these symptoms, and was ultimately admitted to the hospital, where she remained for a period of approximately eight days. Mrs. Yaxley reported to both her family physician and hospital physicians that she had been given Azo Gantrisin tablets by a chiropractic physician and had taken them in the dosages reflected

      hereinabove. She also reported to hospital physicians, as she had indicated to Respondent earlier, that she was allergic to sulfa drugs.

      
      

   6. However, despite the similarities of the symptoms reported by Mrs. Yaxley to those which indicate an adverse reaction to sulfa drugs, tests run while she was hospitalized are inconclusive on the question of whether she in fact suffered such a reaction. These tests neither confirm nor rule out such an adverse reaction.

      
      

   7. Azo Gantrisin is a legend drug required to be dispensed or administered only by a physician. A chiropractic physician is expressly prohibited from administering or dispensing any legend medicine or drug.

      
      

   8. Respondent has never had an administrative complaint filed against him by the Department of Professional Regulation or the Board of Chiropractic prior to the instant Administrative Complaint.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

      
      

   10. Section 460.413(1)(q), Florida Statutes, provides that a chiropractic physician may be disciplined for ". . .[p]rescribing, dispensing, or administering any medicinal drug. . ."

       
       

   11. Section 460.413(1)(u), Florida Statutes, provides that a chiropractic physician may be disciplined for:

       
       

       Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.

       
       

   12. Azo Gantrisin is a legend drug required by Florida and federal law to be dispensed or administered only by a physician.

       
       

   13. By administering and dispensing Azo Gantrisin to Evelyn Yaxley on August 5, 1980, Respondent has violated Sections 460.413(1)(q) and (u), Florida Statutes.

In accordance with the requirements of Section 460.413(2), Florida Statutes, and Rule 21D-16.03(1) and (3), Florida Administrative Code, it is

RECOMMENDED that a final order be entered by the Department of Professional Regulation, Board of Chiropractic, imposing a one thousand dollar ($1,000) fine against Respondent, and further suspending Respondent's license for a period of three (3) months from the date of the final order entered in this proceeding.

IT IS FURTHER RECOMMENDED, however, that the three-month suspension be itself suspended, and that Respondent be placed on probation for a period of one (1) year from the date of the final order.

DONE AND ENTERED this 12th day of October, 1982, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1982.

COPIES FURNISHED:

Tina Hipple, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Jane Raker, Executive Director Board of Chiropractic Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION DIVISIONS OF PROFESSIONS

BOARD OF CHIROPRACTIC

IN RE: JACK KAHN, D.C.

920 N. Federal Highway Hollywood, Florida

License No. 1050 Respondent.

/

CASE NO. 82-726

FINAL ORDER

THIS MATTER came before the Board of Chiropractic on Thursday, January 6, 1983, in Tampa, Florida, pursuant to Section 120.57(1)(b)9, Florida Statutes, for consideration of the hearing officer's Recommended Order (a copy of which is attached and incorporated herein by reference) and the exceptions filed thereto in the case of Department of Professional Regulation, Board of Chiropractic vs Jack Kahn, Case No. 82-726. The Petitioner was represented by Tina Hipple, Esquire and the Respondent was represented by Paul W. Lambert, Esquire. Upon consideration of the hearing officer's Recommended Order and the exceptions filed thereto, the argument of the parties, after a review of the complete record, and being otherwise fully advised in the premises, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The findings of fact contained in the hearing officer's Recommended Order are hereby accepted and adopted in toto.

   
   

2. The Respondent's exceptions to the hearing officer's findings of fact are rejected on the ground that there is competent, substantial evidence to support the hearing officer's factual findings. Respondent's exceptions are no more than an invitation to the Board to reweigh the testimony and evidence, and for that reason must be rejected.

CONCLUSIONS OF LAW

1. The conclusions of law contained in the hearing officer's Recommended Order are hereby accepted and adopted in toto.

   
   

2. The Respondent's exceptions to the hearing officer's conclusions of law are rejected on the ground that there is competent, substantial evidence to support the legal conclusions of the hearing officer.

   
   

3. The exceptions to the recommended penalty filed by both the Petitioner and Respondent are rejected as the Board concludes that the recommended penalty is appropriate. See Rule 21D-16.03, F.A.C.

WHEREFORE it is ORDERED AND ADJUDGED that the Respondent, Jack Kahn, D.C., is guilty of violating sections 460.413(1)(q) and (u), Florida Statutes, and the Florida Chiropractic license of the Respondent is suspended for a period of three (3) months beginning the date of rendition of this order and the Respondent is assessed an administrative fine in the amount of one thousand ($1,000.00) dollars. However, the three (3) month suspension is suspended, and the Respondent is placed on probation for a period of one (1) year beginning the date of rendition of this order.

DONE AND ORDERED this 7th day of February, 1983.

Ron Harris, D.C. Chairman

Board of Chiropractic

cc: Tine Hipple, Esquire

400 W. Robinson Street Suite 308

Orlando, Florida 32801

Paul W. Lambert, Esquire 1114 E. Park Avenue Tallahassee, Florida 32301

Docket for Case No: 82-000726

Orders for Case No: 82-000726