STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF )
CHIROPRACTIC EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2010
)
IVAN C. ROSS, D.C., )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Notice of Hearing furnished to the parties in this case by the undersigned on November 2, 1984, a hearing was held herein before Arnold
Pollock, a Hearing Officer with the Division of Administrative Hearings, in Lakeland, Florida on December 17, 1984. The issue for consideration at the hearing was whether Respondent's license as a chiropractor in the State of Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed against him in this case.
APPEARANCES
For Petitioner: Edward Hill, Jr., Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Douglas H. Smith, Esquire
Post Office Box 1145
Lake Alfred, Florida 33850 BACKGROUND INFORMATION
On April 3, 1984, the Secretary of the Department of Professional Regulation filed an Administrative Complaint alleging in four Counts that Respondent was guilty of sexual misconduct in the practice of chiropractic: practiced chiropractic beyond the scope permitted by law; performed professional services which had not been duly authorized by the patient; and failed to practice chiropractic at a level of care, skill, or treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. Thereafter, Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.
At the hearing, Petitioner introduced the testimony of Karen Surrency, Respondent's patient and complainant herein; Dr. Robert Walper, a chiropractor practicing in Sarasota, Florida; and Dr. John O. Tucker, a chiropractor practicing in Lakeland, Florida, who also saw Ms. Surrency as a patient. By
late filed deposition, Petitioner also presented the testimony of Dr. Jerald L. Balduf and introduced Petitioner's Exhibits 1 through 3. Respondent testified in his own behalf but produced no documentary evidence.
The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b), Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
FINDINGS OF FACT
At all times pertinent to the issues involved in this hearing, Respondent was licensed by the State of Florida as a chiropractor under license number CH 0000997, first issued on January 12, 1952.
In mid-April, 1983, Karen Surrency, a 35-year old divorced heavy equipment operator, suffering from low back pain resulting from a hip problem, went to Respondent at his office in Ft. Meade, Florida for assistance and treatment of the condition. When she arrived at the Respondent's office, which was located in his home, Respondent and his wife were both there. Shortly thereafter, Respondent's wife went back into the house. Respondent took a 10- minute history from Ms. Surrency in which she explained her physical problem. When the history was completed, Respondent asked her to go into the examining room where, he said, he was going to take x-rays. He advised her to go into the dressing area and disrobe, removing everything, including her underwear. He gave her a hospital gown to put on. Ms. Surrency did not question his request to remove all her clothing. When she came out of the dressing area wearing the hospital gown, Respondent placed her in front of the x-ray unit and told her he could get a better picture if she would throw the gown up over her shoulder.
She did this and he placed her at the machine with her back to it, facing him. In the course of doing this, he placed his hand under her right breast, jiggled it, and advised her that her muscle sagged there.
After completion of the x-ray, Respondent asked Ms. Surrency to sit on the examining table. He then told her to walk around the room with the robe pulled up over her shoulder so that he could see her posture. During this period, Respondent was seated on a chair observing her and when she asked him why the gown had to be placed up on her shoulder, he replied that he could see her hip and leg better that way. When this was finished, however, Respondent sat in the middle of one side of the table and had her stand between his legs. He then put his arm around her and turned her so that she faced off to one side with her side toward him. In so doing, he touched her breast, through the material of the gown, with his left hand.
After this, he told her to lay face down on the examining table and when she did, he adjusted her back with the gown open from the neck down.
After completing the spinal adjustment, Respondent indicated he would like to see Ms. Surrency twice a week and set up a second visit for her two days later. When she came for this second visit, Respondent again asked her to disrobe. She asked him if it was necessary to fully disrobe and he indicated it would be better. Once she had done so, wearing a hospital gown again, Respondent had her walk around with the robe up over her shoulders as he had done on the previous visit while he observed her and then told her to do some push-ups. She got down on the floor and complied and when she did the gown, which was open at the back, fell down to her sides and she was bare. Neither at
this time nor prior to this visit had Respondent indicated or instructed Ms. Surrency to exercise at home. Once she completed the push ups, Respondent advised her to again lay face down on the examining table and when she did so, he completed another spinal adjustment. While she was still laying face down, he spread her buttocks apart and told her she did not have any hemorrhoids.
This struck her as odd since she had not complained to him about any problem of that nature and there was no need for him to do this.
In any event, Respondent then told her to turn on to her back. When she did so, Respondent sat on one end of the table facing inward, with one of his legs over each side. This put him in a position of facing the patient. He then told her to slide down closer to him and place her spread legs one over each of his. He told her he was going to massage her muscles which he did by rubbing in a circular motion starting above the pubic hair and working down inside her thighs. At no time, according to Ms. Surrency, did he touch her in the vaginal area.
Respondent then, upon completing this procedure, told her to get dressed.
Ms. Surrency did not go back to Respondent for any further treatment after this second visit because, in her opinion, she did not believe Respondent should have done the things to her that he did. In the first place, she did not think it was appropriate for him to examine her nude without a witness, preferably a female present. In the second place, on one of the two occasions, while she was getting dressed, though she had not complained about having any difficulty in removing her clothing, Respondent asked her if he could help her with her bra.
Ms. Surrency subsequently went to another chiropractor, Dr. Tucker, for the same physical complaints. Dr. Tucker took x-rays of her but she was allowed to wear a robe, her panties, and socks. Dr. Tucker also had her walk but in so doing, she was allowed to wear her uniform pants, her bra, and the hospital gown. Dr. Tucker never asked her to remove all her clothing or to pull the hospital gown up over her shoulders as Respondent did. He also did not touch her breasts or check her for hemorrhoids. He did not perform a massage of the pubic area. In addition to Dr. Tucker, Ms. Surrency also visited a Dr. Haig, also practicing in Ft. Meade, for the same problem. Dr. Haig, who also took x- rays and also had her walk, treated her the same as Dr. Tucker did.
Ms. Surrency did not complain either to or about Respondent at the time he did the things to her which offended her as described above nor did she attempt to stop him from doing them while he was doing them. In fact, she has no quarrel with the diagnosis that Respondent made of her condition and his suggested course of treatment which included several subsequent spinal adjustments. In fact, the other two chiropractors to whom she went after leaving Respondent's care suggested the same treatment. Her complaint is more toward the method of examination; the failure to have a witness present and the requirement for nudity in the course of the examination.
Ms. Surrency did not actually complain to anyone until some five or six months after leaving Respondent's care. At that time she filed a complaint with the Petitioner, Board of Chiropractic Examiners. She had in the interim, however, called Respondent on the phone on several occasions regarding securing
his signature on certain insurance papers and getting a release of her records. On one of these occasions, Respondent asked her why she had stopped coming to see him. Thereafter, when she went to his office to pick up her papers, Respondent refused to give them to her until she went in to talk with him about her alleged complaint.
Dr. Tucker was visited by Ms. Surrency, in June, 1983, when she complained of an unusual indentation in her left hip and pain between her shoulder blades. This pain radiated down through the lower back to her leg. On her first visit, she advised Dr. Tucker that she had seen the Respondent prior to that time for two visits but did not want to talk about what had happened.
It was only after she had seen Dr. Tucker two or three times that she began to describe her problems with the Respondent and asked if the procedures he had followed were normal. Whenever she would talk of these incidents she would break down and cry.
It was the opinion of Dr. Tucker and that of Dr. Walper as well, both qualified chiropractors licensed in Florida, that the procedures followed by Respondent in many respects were outside the boundaries of normal and proper chiropractic treatment. For example, when Dr. Tucker does an x-ray of a female patient, depending upon the area to be photographed, the patient is not required to be totally nude. In a situation such as Ms. Surrency's, the patient would wear a hospital gown and keep her underpants on. In Dr. Tucker's opinion, contrary to that of the Respondent, it is quite possible to get an x-ray of good quality with the patient wearing a gown and nonmetallic underclothing, and has never had a patient completely nude with the gown up over her shoulder.
As to requiring the patient to walk, a patient with Ms. Surrency's complaint would do so wearing a gown with her underwear. There is no medical reason for total nudity and for the patient to have a gown up over her shoulder. Since this was a hip problem, it would be necessary to observe the hip but caution is required not to embarrass the patient as was done in this case. Dr. Tucker could see no reason for an examination of the buttocks area as was accomplished by Respondent for the complaints that Ms. Surrency had.
Dr. Walper, who has practiced as a chiropractor since 1950 and in Florida since 1976, did not examine Ms. Surrency but did review the report of investigation completed by Petitioner's investigator which included the statements given under oath by the patient. Based on this review, be concluded that Respondent's techniques were totally unacceptable and did not meet community standards.
As to the nudity involved in the x-ray, be was of the opinion that it was totally unnecessary because the x-rays will penetrate clothing except metal and there is no reason to require the patient to pull the hospital gown up over her shoulder. Admitting that substantial medical authority indicates that clothing should be removed for x-rays as far as possible, he contends that the operative words here are "as far as possible" and this does not envision the necessity for total nudity inasmuch as the shadow created by something as flimsy as underpants would be inconsequential to an adequate evaluation of the radiographic picture.
With regard to the walk Respondent had Ms. Surrency perform, Dr. Walper agrees that it would be appropriate for a patient with Ms. Surrency's problem to be asked to walk so that the physician might observe the gait.
However, the technique used here, requiring the patient to walk nude with the gown up over her shoulder, was inappropriate and unnecessary. There was, in his opinion, no need whatever for the patient to be naked.
Dr. Walper can also see no medical reason for Respondent to touch the patient's breasts, even though the second touching was done through the gown and to do so would be inappropriate. As to the buttocks examination, this would not be medically necessary for the type of complaint this patient had. It would be appropriate if the patient had complained of hemorrhoids or if it were accomplished during a routine physical. However, Ms. Surrency had not complained of a hemorrhoid problem and had come in with a specific complaint, not for a routine and general physical examination.
Walper is unable to understand any reason for requiring the patient to do push-ups. Admittedly there are some exercises to be done for Ms. Surrency's condition after the symptoms have been relieved, but certainly not push-ups and not in the nude during a physical examination. As to the pubic and thigh rubbing accomplished by Respondent when he had Ms. Surrency place her legs over his, this type of touching for this patient's complaint, in his opinion, would be most inappropriate.
Dr. Walper indicated, and it is so found, that practice standards for chiropractors are reasonably similar throughout the State of Florida. In his opinion, the treatment afforded Ms. Surrency by Respondent in the incidents set out in the Administrative Complaint, were outside the scope of chiropractic and Respondent did not perform here with reasonable skill or in a manner which would be followed by a reasonably prudent doctor of chiropractic under the circumstances. What Respondent did here, in Dr. Walper's opinion, constitutes sexual impropriety and misconduct.
Respondent has been a chiropractor since 1952 when he graduated from the Lincoln Chiropractic College and has practiced in Florida since 1953. He located his practice in Ft. Meade in 1960.
Chiropractic education is divided into two schools of thought. One is made up of "mixers" and the other is made up of "straights." Respondent attended a "mixer" school. The difference in his education was that he was taught to (a) take a good case history, (b) treat for any problem found; and (c) treat to cure the problem rather than the symptoms. He defines chiropractic medicine as dealing primarily with the skeletal system, the joints, and adjacent tissues.
Respondent recalls the first visit he had from Ms. Surrency and basically confirms her comments regarding it. While he indicates that it is routine for him to require total nudity under the gown on a first x-ray, from that point on, be says, the patient is allowed to keep their underpants on. He requires the patients to remove the clothing so that it does not get into the way of the x-ray and also because he wants to cut down on the strength of the x- ray required to accomplish the picture. Respondent contends that synthetic fibers such as found in women's underwear are metal and require the use of stronger x- ray. There is no evidence, save Respondent's allegations, to support this theory and it is rejected.
Respondent denies that when he spread Ms. Surrency's buttocks he was examining the rectum. Instead, he claims, he was palpating the large muscle of the buttocks area during the examination of everything as he was taught. His examining table has a pelvic roll, he says, which would present the buttocks of
a patient on her stomach more prominently than would a table used by graduates of a Palmer school of chiropractic medicine. There is a substantial difference between palpating of muscle and the spreading apart of a buttock and the comment which Ms. Surrency made regarding her hemorrhoids supports a finding that he did in fact spread her buttocks since it would be impossible to see hemorrhoids were the buttocks not spread apart.
Respondent admits that he may have touched Ms. Surrency's breast and if he commented on it, he claims, it was merely a casual observation of something he saw. He meant nothing by it. As to the requirement that Ms. Surrency walk nude in front of him, he contends he wanted to observe her feet, knees, and shoulders to see how she looked all over. He again wanted to see her walk after he had performed the adjustment to see if the treatment had done any good. He admits having required the patient to pull the gown up over her shoulder contending that it was just some procedure he picked up during his practice. It works for him and as far as he is concerned, that's all that matters.
When Ms. Surrency returned to him the second day before the examination he sat with her and discussed what he had found on the x-rays he had taken during the first visit. He told her that her spine was off center and there were five areas in it that required adjustment. He also told her he could not tell her how long it would take to resolve the problem because the numerous variables involved made it impossible for him to accurately predict a course of treatment.
He also admits that he had Ms. Surrency place her legs over his as described in her testimony but defends it on the basis that because he suffers from phlebitis and cannot stand long on his legs, this being the end of the day and since he was tired and his leg was hurting, he utilized this procedure so that he could be sufficiently comfortable to apply equal pressure to the area he was massaging. He applied the "goading" technique of accupressure to various areas above and on the pubic bone to get the patient's muscles to relax and to prompt the lymphatic system to start flowing. Respondent contends this method of treatment is a long standing and accepted practice. The massage technique may well be an accepted practice but the method applied here by Respondent in having the nude patient's legs draped over his with her genital area facing him was not.
Respondent then had the patient do the push-ups to determine her muscle balance, a factor important in relationship to the adjustment of the spine. This was related to the pain in between the shoulder blades, not for the low back.
Respondent's testimony was not based on his actual recollection but instead is primarily his speculation as to what happened based on his normal practice. He does not recall a majority of the events on either day he saw Ms. Surrency. She is quite sure of her testimony. There is little equivocation and even less speculation. On balance, then, it is clear that the story as told by Ms. Surrency is more credible and worthy of belief. Consequently, it is found that her allegations as to the actual occurrences are accurate. Respondent's explanations do not deny the occurrences, but tend to present some self justification for it.
In 1977, a Final Order of the Board of Chiropractic revoked Respondent's license to practice in the State of Florida based on an administrative hearing which resulted in findings that Respondent was guilty of
unprofessional conduct the circumstances of which we are not concerned with here. An appeals court subsequently sustained the findings of fact but reduced the revocation to a suspension for six months and Respondent's license was subsequently reinstated after he had served the period of suspension.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
In Count One of the Administrative Complaint, Petitioner alleges that Respondent is guilty of sexual misconduct in the practice of chiropractic in violation of Section 460.412, Florida Statutes, which is, therefore, a violation of Section 460.413(1)(w).
Section 460.412 reads as follows:
A chiropractic physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of chiropractic means violations of the chiropractic physician-patient relationship through which the chiropractic physician used 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 of the scope of generally accepted examination or treatment of the patient. Sexual misconduct
in the practice of chiropractic is prohibited.
If it should be found that Respondent here violated this provision of the statute, it would be a violation of Section 460.413(1)(w) which cites as a ground authorizing disciplinary action as:
Violating any provision of this chapter, any rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
Dr. Ross' actions in requiring Ms. Surrency (1) to remove all her clothing including her undergarments and stand before him with her hospital gown over her shoulder thereby displaying her entire body; (2) touching her breast and commenting on its muscle status; (3) requiring her to lay with her legs across his legs on the examining table thereby presenting her genital area to him and his subsequent massage of the area on the inside of her thighs clearly appear to be sexual misconduct as defined by the statute in that the Respondent used his relationship with the patient to engage in his own sexual gratification short of intercourse or fondling. Since his activities constitute sexual misconduct in the practice of chiropractic, it also constitutes a violation of the disciplinary statute referenced above.
In Count Two, Petitioner alleges that Respondent practiced chiropractic beyond the scope permitted by law in violation of Section 460.413(1)(u) which permits disciplinary action based on the Respondent's:
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 he is not competent to perform.
In Count Three, Petitioner alleges that Respondent performed professional services not authorized by the patient in violation of Section 460.413(1)(p) which permits disciplinary action when the Respondent is guilty of:
Performing professional services which have not been duly authorized by the patient or his legal representative. . . .
These statutes are intended to prohibit practitioners of chiropractic from expanding their practice into areas and disciplines in which they were not qualified or which are governed and regulated by other licensing bodies and from performing services, unordered by the patient, which have the effect of running up the bill. They were not designed to cover unauthorized, improper, or aberrant practices in the area involving quality of practice. This latter area was provided for clearly by the Legislature in Section 460.413(1)(f) which permits the imposition of disciplinary action for:
Gross or repeated malpractice or the failure to practice chiropractic at a level of care, skill, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances . . . .
Here, two highly qualified chiropractors, neither of whom practices in competition with Respondent, have concluded that the Respondent's performance in the case of Ms. Surrency falls far short of a standard or level of care, skill, or treatment recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. This testimony has not been countered by any evidence to the contrary, and it is concluded, based on it, that in fact the Respondent is in violation of this section.
It having been concluded that the Respondent is guilty of two violations of the statute which permit disciplinary action, the question remaining is what this action should be. Fortunately, Ms. Surrency was not physically abused and has suffered no physical or long standing emotional harm from her encounter with the Respondent. The evidence as presented at the hearing clearly indicates Respondent is no longer capable of adequately practicing the profession of chiropractic. The evidence also indicates that this is the second time his license has been subject to disciplinary action.
Based on the foregoing findings of fact and conclusions of law, it is, therefore,
RECOMMENDED that the Respondent, IVAN C. ROSS' license as a chiropractor in the State of Florida, Number CH 0000997, be revoked.
RECOMMENDED in Tallahassee, Florida, this 18th day of February, 1985.
ARNOLD H. POLLOCK
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 Administrative Hearings this 18th day of February, 1985.
COPIES FURNISHED:
Edward Hill, Jr., Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Douglas H. Smith, Esquire Post Office Box 1145
Lake Alfred, Florida 33850
| Issue Date | Proceedings |
|---|---|
| Oct. 23, 1990 | Final Order filed. |
| Feb. 18, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 05, 1985 | Agency Final Order | |
| Feb. 18, 1985 | Recommended Order | Where Doctor required female patient to totally disrobe for exam and he took liberties with her, he was guilty of practice far below standards. |
