STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2784

)

JOSEPH A. BUTTACAVOLI, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 23, 1983, in Sarasota, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Petitioner, which alleged that the Respondent, Joseph A. Buttacavoli, a licensed chiropractor, had failed to keep written records justifying the course of treatment of Jeffrey Goldman, had exercised influence on Goldman for financial gain, and had failed to practice chiropractic at a level of care, skill and treatment recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

517 East College Avenue Tallahassee, Florida 32301

For Respondent: Michael R. N. McDonnell, Esquire

600 Fifth Avenue, South, Suite 301 Post Office Box 8659

Naples, Florida 33941 ISSUES

The issues presented were whether the records maintained by the Respondent were adequate to justify the course of treatment proposed by the Respondent for the patient Goldman; whether the Respondent exercised influence on Goldman for the Respondent's financial gain; and whether the Respondent practiced chiropractic at a level of care, skill and treatment recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.

Both parties submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Joseph A. Buttacavoli, is a licensed chiropractor, having been issued license number 00335. The Respondent practices chiropractic at 7162 Beneva Road, Sarasota, Florida 33583. (See Prehearing Stipulation.)

   
   

2. On July 6, 1981, Jeffrey Goldman responded to the Respondent's newspaper advertisement offering a free examination. (See Prehearing Stipulation; Tr. 15.)

   
   

3. On July 6, 1981, Goldman was complaining of pain in the neck radiating into the left shoulder. The pain was recent in origin, having started a few weeks prior to July 6, 1981. Goldman had suffered similar problems during the past 10 or 12 years on an intermittent basis, but this instance was more intense than previously experienced. (Tr. 12, 13.)

   
   

4. The Respondent performed a free examination consisting of certain orthopedic and neurological tests. (Tr. 73, 77.)

   
   

5. The Respondent did not record in writing the results of this examination. (Tr. 117.)

   
   

6. Two of the tests were positive on Goldman's left side. (Tr. 73-77.)

   
   

7. After completion of the examination, the Respondent tentatively diagnosed a pinched nerve in the neck and recommended to Goldman that x-rays be taken. (Tr. 78.)

   
   

8. Goldman consented to the x-rays and was charged $80 for four x-rays which were taken. (See Prehearing Stipulation.)

   
   

9. After the x-ray examination, the Respondent concluded that Goldman had a straightening of the normal cervical spine, some arthritic spurring and disc degeneration at the C4/C5 and C5/C6 level, and several vertebral misalignments. (See Prehearing Stipulation; Tr. 87.) The Respondent advised Goldman that his condition was serious and recommended treatment for 90 days. (See Prehearing Stipulation.)

   
   

10. The Respondent told Goldman what the 90 days' treatment would cost and advised Goldman that the cost would be less if paid in advance.

    
    

11. The Respondent practices a chiropractic technique known as Grostic or orthospinology. (Tr. 53, 55.)

    
    

12. A diagnosis cannot be reached without x-rays using the Grostic technique, and the Respondent takes x-rays in every case except those in which the problem is muscular or x-rays are refused by the patient. (Tr. 115, 116.)

    
    

13. The preliminary or free examination is the basis for the Respondent's recommending that x-rays be taken. (Tr. 117.)

    
    

14. In the Grostic technique, a complex analysis of x-rays is the basis for a final diagnosis. This requires that x-rays be taken of the patient to apply the technique. (Tr. 59-63, 117-118.)

    
    

15. In addition to the x-rays, which were kept by the Respondent as part of the record, Goldman's history/interview form was also maintained. (Tr. 48.)

16. The x-rays on file and the medical history form constitute sufficient justification for the recommendation made by the Respondent to Goldman. The diagnosis of Goldman's problem was based upon his history, a physical examination and x-ray findings. These findings were reviewed by Dr. George Stanford Pierce, who verified the Respondent's suggested course of treatment based upon the records the Respondent maintained. (Tr. 150.)

    
    

17. Goldman refused further treatment by the Respondent. (Tr. 26.) No evidence was received that the Respondent practiced chiropractic with less than the required level of care, skill and treatment recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Board of Chiropractic has statutory authority to discipline chiropractic physicians licensed in the State of Florida. This Recommended Order is entered pursuant to the authority of Section 120.57(1), Florida Statutes.

    
    

19. The Administrative Complaint filed against the Respondent alleges that the Respondent violated Section 461.031(1), Florida Statutes, by failing to keep written chiropractic records justifying a course of treatment of a patient, including, but not limited to, patient histories, examination results and test results; exercising influence on a patient or client for the financial gain of the licensee; and the failure to practice chiropractic at a level of care, skill and treatment which is recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.

    
    

20. Regarding the allegation that the Respondent failed to practice chiropractic at a level of care, skill and treatment which is acceptable contrary to Subsection 461.031(1)(s), Florida Statutes, the evidence is uncontroverted that the Respondent rendered an appropriate diagnosis and suggested course of treatment to the patient Goldman. There was no violation of Subsection 461.031(1)(s), Florida Statutes.

    
    

21. Regarding the allegation that the Respondent exercised influence on Goldman for financial gain contrary to Subsection 461.031(1)(o), Florida Statutes, no evidence was presented that the Respondent exercised any improper influence on Goldman. There was no violation of Subsection 461.031(1)(o), Florida Statutes.

    
    

22. Concerning the allegation that the Respondent failed to keep written chiropractic records justifying the course of treatment of Goldman contrary to Subsection 461.031(1)(n), Florida Statutes, the record reflects that the Respondent maintained the patient's history and the x-rays taken. The facts reflect that the Respondent conducted a physical examination of Goldman, but that no other tests were run. The facts also reflect that Goldman refused further treatment after the Respondent tendered his diagnosis.

    
    

23. The statute requires that records be kept to justify a course of treatment of a patient. The Petitioner urges a definition of treatment which includes all steps taken to effect a cure of an injury or disease, to include examination and diagnosis. If this definition is applied, the law requires the chiropractic physician to keep those records which explain the treatment rendered. The records maintained by the Respondent were sufficient for another

chiropractic physician trained in the technique of orthospinology to assess the patient's condition and confirm the Respondent's diagnosis. The records maintained were sufficient to justify the course of treatment, to include the Respondent's diagnosis. There was no violation of Subsection 461.031(1)(n) Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed by the Petitioner against the Respondent, Joseph A. Buttacavoli, be dismissed.

DONE and RECOMMENDED this 12th day of July, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 July, 1983.

COPIES FURNISHED:

Diane K. Kiesling, Esquire

517 East College Avenue Tallahassee, Florida 32301

Michael R. N. McDonnell, Esquire 600 Fifth Avenue, South,

Suite 301

Post Office Box 8659 Naples, Florida 33941

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jane Raker, Executive Director Board of Chiropractic

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 82-2784 - DOAH

0020935 - DPR

JOSEPH A. BUTTACAVOLI,

Respondent.

/

ORDER

This cause came before the State of Florida Board of Chiropractic at its duly noticed meeting of August 25, 1983, in Tampa, Florida. Upon a complete review of the record in this cause, including the transcript, recommended order, and the exceptions filed thereto by the Petitioner, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. On or about February 3, 1983, an Amended Administrative Complaint was filed against the Respondent. Upon contest, the matter was referred to the Division of Administrative Hearings for formal proceedings pursuant to Section 120.57(1), F.S. Formal proceedings were conducted in the matter on or about March 23, 1983, and a recommended order, copy attached, entered on or about July 12, 1983.

   
   

2. On or about July 21, 1983, Petitioner filed its Exceptions to the Recommended Order, a copy of which is attached. Respondent did not except in any manner to the attached Recommended Order.

   
   

3. The Board hereby adopts paragraphs 1 through 17 of the Findings contained in the attached Recommended Order with the exception of paragraph 16. Paragraph 16 is rejected in that it is actually a conclusion of law as to what constitutes a sufficient justification for a recommended course of treatment. Paragraph 16 is further rejected as not being based upon any competent substantial evidence as contained in the record in that the record is clear that Dr. Pierce could not voice a complete opinion as to treatment without the examination findings.

   
   

4. The Board hereby adopts and incorporates as its own the additional bindings of fact as contained in the Petitioner's exceptions to the Recommended Order to wit:

   1. Dr. Buttacavoli has no written records of the x-ray analysis which he performed on Mr. Goldman's x-rays. The actual lines on the x-rays have been erased, and no written report of the results of the x-ray analysis was made. (Transcript-122)

      
      

   2. The x-rays card be re-analyzed, but there is no written record to examine to determine if the first analysis and the re-analysis are the same. (transcript-122)

      
      

   3. Another chiropractor, even one who uses Grostic technique, could not voice a complete opinion as to diagnosis and treatment, without the orthopedic and neurologic findings. (transcript-149, 151)

      
      

   4. To justify a suggested course of treatment, the written records should include written notations of the x-ray findings a written diagnosis on the x- rays, the final diagnosis considering the analytical findings of the x-rays and the written orthopedic and neurologic findings. (deposition-Pia-31)

      
      

      CONCLUSIONS OF LAW

      
      

5. The Board hereby rejects the Conclusions of Law as contained in the Recommended Order with the exception of the Hearing Officer's conclusion that there was no violation of Section 461.O3l(1)(s), Florida Statutes.

   
   

6. The Board concludes that there was competent, substantial evidence in the record to confirm that Respondent exercised improper influence on potential patients by enticing them to come to his office for free service when the Respondent knew that he would recommend the taking of x-rays, a cost service, because a diagnosis, based upon the "Grostic technique" could not be formed without the x-rays.

   
   

7. A complete chiropractic opinion or final diagnosis could not be reached in this matter without the results of orthopedic and neurological tests which were apparently performed by the Respondent but not recorded. Accordingly, the records maintained by the Respondent were insufficient to justify a course of treatment, including Respondent's diagnosis in the case at hand. In that regard, the Board considers that a course of treatment begins when a patient presents him or herself to a chiropractic physician for initial examination or diagnosis and the chiropractic physician undertakes to perform the same upon the patient.

   
   

8. Based upon the foregoing, the Respondent is in violation of Sections 460.013(1)(o), Florida Statutes, as well as Section 460.013(1)(n), Florida Statutes.

It is therefore ORDERED that an administrative fine of one thousand dollars ($1,000) each for violations as contained in Counts I and II of the Amended Administrative Complaint for a total amount of two thousand dollars (2,000) be imposed against the Respondent.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation,

DONE and ORDERED this 30 day of September, 1983.

RON HARRIS, D.C. CHAIRMAN

Board of Chiropractic

COPIES FURNISHED:

Diane Kiesling, Esquire Jeffrey A. Miller

Michael McDonnell, Esquire

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by U.S. Mail to Joseph A. Buttacavoli, 7162 Beneva Road, Sarasota, Florida 33583, this 30th day of September, 1983.

Fred Varn Executive Director

Docket for Case No: 82-002784

Orders for Case No: 82-002784