STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3810

)

JOSEPH SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 6, 1988, in Miami, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ray Shope, Esquire, and

Cynthia Shaw, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Joseph Smith, D.C., Pro se

3822 West Broward Boulevard Fort Lauderdale, Florida 33312

ISSUES

Respondent was charged in a five count Administrative Complaint with making or filing a report which the licensee knew to be false in his capacity of a licensed chiropractic physician; failing to keep written chiropractic records justifying the course of treatment of a patient; submitting to a third party payor a claim for services or treatment which was not actually provided to a patient; submitting to a third party payor a claim for a service or treatment without at the same time also providing a copy of the claim to the insured; and making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic.

PRELIMINARY STATEMENT

Respondent received adequate notice of each of the foregoing substantive charges which were specifically set forth narratively in the Administrative Complaint. Each violation as narratively set forth in the Administrative Complaint was also accompanied by a numerical citation of statutory authority. It is noted, however, that two of the violations charged contained what are clearly typographical errors in statutory numbering, so that subparagraphs 460.413(1)(m) was charged when (1)(n) was intended and (1)(e) was charged when

(1)(1) was intended by the respective accompanying narrative descriptions. This minor pleading flaw is insufficient, under the circumstances of this case, to limit or diminish notice, particularly since the issue was not raised by the Respondent. The correct statutory subsections are addressed in the following conclusions of law.

Petitioner presented the oral testimony of three witnesses: Ray Shope, James Golden, and Dr. Robert Butler, who was accepted as an expert in chiropractic, and had three exhibits admitted in evidence. Respondent testified on his own behalf and had one exhibit admitted in evidence.

One transcription of the formal proceedings which had missing pages was filed by Petitioner. Petitioner, discovering the omission, later caused the court reporter to file a second complete transcript but for some time did nothing on the record to clarify why this had been done.

By order, the undersigned required that Petitioner justify which transcript should be used. Thereafter, upon order entered September 14, 1988, the second transcript was deemed complete and duly filed. That order also permitted the parties time in which to file any amendments to their respective proposed findings of fact and conclusions of law submitted prior to clarification as to which transcript would be the official transcript herein; both parties waived that opportunity.

Specific rulings upon the parties' respective proposed findings of fact are set forth in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Petitioner Department of Professional Regulation is the state agency charged with regulating the practice of chiropractic pursuant to Section 20.30 and Chapters 455 and 460, Florida Statutes.

   
   

2. Respondent is, and at all times material hereto has been, a licensed chiropractor in the State of Florida, having been issued license number CH 0003234. His address of record is 3822 W. Broward Boulevard, Plantation, Florida.

   
   

3. This discipline case arose out of a complaint from a patient named Dale McCormick when Respondent put Mr. McCormick's unpaid bill into "collection."

   
   

4. On March 17, 1986, Respondent had examined Dale McCormick and began treating him for shoulder/lower back pain.

   
   

5. Mr. McCormick did not testify at formal hearing. Therefore, the only testimony as to what examinations and treatments were actually performed by Respondent on Mr. McCormick was that of Respondent. Respondent first testified that the examination he performed was "brief" and included a depression test on each shoulder and circular depression test on the skull, with observation and touching of swelling, edema, and muscle spasm. Respondent did not remember whether he did a range of motion examination on Mr. McCormick and could not discern from the Confidential Patient Case History whether or not he had done so because it is his practice only to record positive findings (i.e. loss of range of motion) and he had recorded no loss of motion. Respondent's own conclusion from this record was that either he had done a range of motion test with no positive findings worthy of recording in his records or he had not done a range

   of motion test at all. The ambiguity of this chiropractic record, the only one which can be clearly demonstrated to relate to Mr. McCormick (see Finding of Fact 17), demonstrates the inadequacy of the record in that the chiropractor who actually performed the examination. (Respondent) could not recall from his review of that record what had been involved in his physical examination.

   Respondent's testimony also illustrates the probable confusion that would be experienced by a different health care professional reviewing the same record. See Findings of Fact 19 and 20.

   
   

6. Although Respondent subsequently testified that he also considered his examination of Mr. McCormick to be a "comprehensive" examination, he indicated that this appellation depended on the intensity of what any given doctor wanted to do. Respondent conceded that normally he would have given a much more intensive examination but on the day he examined Mr. McCormick he was rushed; that he had intended to get more information from the patient and supplement his records on a subsequent or follow-up visit; and that his records could have been more complete.

   
   

7. Respondent diagnosed lumbar strain. Respondent testified that he prescribed phenylalamine for pain, and cold pack for edema and muscle spasm; that he performed traction, muscle stin, spinal adjustment and hot packs as therapy for pain and muscle spasm, and provided a lumbar sacral brace. Phenylalamine for edema, therapy for pain, and a lumbar sacal brace are treatments also listed on a bill which bears Mr. McCormick's name and the Respondent's file number for Mr. McCormick. They are also noted beside Mr. McCormick's name on a sign-in sheet used for every patient Respondent saw on the same day but they are not listed on either chiropractic "record" discussed in Findings of Fact 12-18 infra. The bill also reflects the initials "SAMSHPTR" which was not directly explained by any testimony but which the undersigned infers from the testimony to signify spinal adjustment (SA), muscle stin (MS), hot packs (HP) and traction (TR). Respondent consistently attempted to justify his diagnosis by describing the treatment rendered after the diagnosis as opposed to using his examination to reach a diagnosis and then justifying the treatment rendered by naming the diagnosis. The bill and the sign-in sheet are forms commonly in use by chiropractors but are not normally considered professional "chiropractic records."

   
   

8. Mr. McCormick paid $35 and received a receipt saying he had reduced his account to a zero balance. Nonetheless, he also signed a lien and insurance authorization form by which Respondent was entitled to seek compensation for the treatment rendered from a third party payor, Mr. McCormick's insurance company. In the absence of testimony by Mr. McCormick as to what the financial arrangement was, and considering the logic that liens are not required of persons who have truly paid in full, Respondent's unrefuted testimony that his secretary/clerk issued the "paid in full receipt" to Mr. McCormick in error is accepted.

   
   

9. Thereafter, Respondent billed Mr. McCormick's insurance company for

   $290, the balance of Mr. McCormick's bill claimed due by Respondent. Respondent billed the insurance company for the following:

   
   

   90020 Initial Exam	$150
   97260, 97010, 97012, 97014	65
   07040 Lumbar/Sacral Belt	50
   Therapy for pain	60

10. Respondent testified that he did not know precisely what each of the insurance claim codes signified because he let his clerk/secretary fill these in. He understood code 90020 to signify however intense an examination he chose to give; 97260 to mean "spinal adjustment," and 97010, 97012, and 97014 to mean traction, muscle stin, and hot packs in one order or another, which order he was unsure. Dr. Robert Butler, accepted as an expert in chiropractic over objection, testified that 90020 meant "comprehensive examination;" he did not opine on what the other codes might mean. There is no independent documentation concerning the insurance codes which would tend to support either witness' "opinion" of what the codes signify.

    
    

11. There is no evidence to show whether Respondent did or did not simultaneously provide a copy of the insurance claim to the insured (McCormick) and the third party payor (insurance company).

    
    

12. Respondent's chiropractic records relative to this case include only a Confidential Patient Case History Form (P-3) and an Orthopedic Neurological Exam Form (R-1).

    
    

13. Both records fail to include basic vital signs or other examination relative to a comprehensive examination as described by Dr. Butler.

    
    

14. Respondent's Confidential Patient History Form has left blank several areas of general and specific conditions that normally should be filled in by the patient prior to treatment. There is, in fact, no information covering the history of the onset of the problem or injury for which Mr. McCormick presented himself to Respondent. It merely recites "rt & lt shoulder pain" and "rt and lt. low back pain."

    
    

15. Although Respondent's Orthopedic Neurological Exam Form contains blank areas to fill in the date and time of injury and the location of the present complaint, these were not filled in on this form and no information as to overall medical history is recorded thereon. This form contains space to record examination results but none are recorded, including common observations for height, weight, posture, and vital signs.

    
    

16. Dr. Butler conceded that if the Orthopedic Neurological Exam Form could be related to McCormick, it would be sufficient written record of justification of an examination being performed for billing purposes and he expressed no opinion as to the appropriateness of the amount charged therefor. From the Orthopedic Neurological Exam Form, Dr. Butler could only conclude that the patient described was a "healthy individual" without any positive findings upon examination, and that although the form also contains information concerning selective tests performed on the patient, none of the tests recorded revealed positive findings to justify Respondent's diagnosis of Dale McCormick.

    
    

17. The Orthopedic Neurological Exam Form was not produced by the Respondent in the course of submitting to informal discovery. It was only located by Respondent among his papers in the course of final formal hearing and subsequent to Dr. Butler's initial testimony and Respondent's testimony. It is machine-copied on the back of a copy of the assignment of lien and insurance authorization signed and dated by Mr. McCormick. From the immediately foregoing facts alone, it may be concluded that this particular record was maintained in a haphazard manner and not in conformity with reasonable chiropractic care and practice. Moreover, this form does not have Mr. McCormick's name on its face and does not reflect any other information identifying who the patient was, the date of examination, or any information which would confirm that the form was

    made out contemporaneously with Respondent's physical examination of Dale McCormick. There is no suggestion it was ever submitted to the insurance company to verify Respondent's treatment of Mr. McCormick. For the foregoing reasons and even though Respondent was permitted to reopen his case so as to present this "newly discovered evidence", admitted as "R-1", the undersigned is not persuaded that this Orthopedic Neurological Exam Form relates to the patient in question, Dale McCormick.

    
    

18. Neither report justified the course of treatment rendered by Respondent.

    
    

19. Upon the expert testimony of Dr. Butlers it is found that: The single most important aid for a chiropractic physician in evaluating a patient's condition is a comprehensive history. The minimal standards in the chiropractic profession for a comprehensive patient history are obtaining the primary complaint, secondary complaints (if they exist), duration of the problem, the nature of the problem, what has been done for the problem, if any previous accidents or injuries exist, whether the patient is taking any medication for the problem, and if the patient is receiving any other treatment. Patient histories should be recorded to assist the treating chiropractic physician or successive health care professional in subsequent treatment of the patient. The results of examinations should be recorded by the chiropractic physician to assist the treating chiropractic physician or any successive health care professional in subsequent treatment of the patient. It is standard in the profession for chiropractors to maintain a minimal record of proceedings, communications, and findings and procedures relative to the management and care of each patient.

    
    

20. Dr. Butler acknowledged that it is possible to treat a patient without obtaining a patient history but insisted it is risky to treat professionally within the confines of the professional standards without knowing what the underlying condition is. While the exact treatment of a patient with shoulder/low back pain may vary, the physician should record his treatment in the chiropractic records for the patient. This was not done in this case by Respondent. In Dr. Butler's opinion, the examination related in Respondent's testimony was insufficient to treat shoulder/low back pain.

    
    

21. Respondent has been previously disciplined for violations of Sections

    460.413 (1)(d) and (e) Florida Statutes and Rules 21D-15.01 (2)(g) and (i) with regard to advertising, which offenses are unrelated to the one violation proved herein.

    
    

    CONCLUSIONS OF LAW

    
    

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

23. Respondent is charged with the following proscribed activities: S460.413 Grounds for disciplinary action;

    action by the board--

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       1. Making of filing a report which the licensee knows to be false, . . .

          
          

          1. Making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic or employing a trick or scheme in the practice of chiropractic when such trick or scheme fails to conform to the generally prevailing standards of treatment in the chiropractic community.

       
       

       (n) Failing to keep written chiropractic records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results and X rays. . .

       
       

       (y) Submitting to any third-party payor a claim for a service or treatment which was not actually provided to a patient.

       
       

       (bb) Submitting to any third-party payor a claim for a service or treatment without at the same time also providing a copy of the claim to the insured.

       
       

24. With regard to Counts I, III, and V, there is insufficient evidence to meet the "clear and convincing" standard for the discipline of professional licenses established in Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

25. Respondent filed an insurance claim for a number of services/treatments. The only competent evidence on the subject of whether these services/treatments were, in fact, performed, is his own. As to all services/treatments except the actual physical examination, it is unrefuted that he actually performed the services. As to the physical examination, the claim specifies "90020 Initial Exam." Respondent admits his was a brief examination and not truly comprehensive. Petitioner could have offered the schedule code to clarify what "90020" means, but did not. Dr. Butler testified that "90020" signifies to the insurance company a "comprehensive examination", but the predicate for his knowledge of this definition was not presented. Under other circumstances, Respondent's failure to oversee his clerk/secretary in the making out of the claim forms would be chargeable against him on theories of "duty to supervise" and of "ultimate responsibility of the claim signator", but here, her addition to the numerical code 90020 of the words "initial examination" on the claim form supports Respondent's testimony that he had no knowledge of ambiguity, let alone falsity, when he signed the claim form. Certainly, there is insufficient evidence of any trick, scheme, or device by Respondent. The claim represents a simple mistake as opposed to a deliberate misstatement. Therefore, violations of Section 460.413 (1)(j), making or filing a report known to be false; Section 460.413 (1)(y) submitting a third party claim for services not actually provided; and Section 460.413 (1)(1) making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic or employing a trick or scheme in the practice of chiropractic have not been proved.

26. With regard to Count II, the evidence is clear and convincing that Respondent's Confidential Patient Case History Form was insufficient to justify the extensive treatment embarked upon. Since the Orthopedic Neurological Exam Form (R-1) cannot be clearly related to Dale McCormick, it cannot be used to justify his treatment, but even if it could be considered, the contents of the two chiropractic records as well as the condition in which they were maintained (with R-1 either lost or co-mingled with the wrong file) is insufficient. Also, notations on the patient's bills and on a sign-in sheet which was utilized for numerous other patients do not fulfill the professional standards for chiropractic record keeping. Respondent has violated Section 460.413 (1)(n).

    
    

27. With regard to Count IV, there was no evidence of record to sustain a finding of a violation of Section 460.413(1)(bb).

    
    

28. Rule 21D-16.003(1)(v) prescribes a minimum discipline of one year probation and a maximum discipline of three months suspension followed by six months probation for violations of Section 460.413 (1)(n) Florida Statutes.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Chiropractic enter a final order dismissing Counts I, III, IV, and V of the Administrative Complaint and finding Respondent guilty of Count II, a violation of Section 460.413 (1)(n) Florida Statutes, imposing a fine of $1,000, suspending Respondent's license as a chiropractic physician for one month, and imposing a one year period of probation to follow directly upon the completion of the one month suspension, with the period of probation to be reduced in the event the Respondent demonstrates to the Board satisfactory completion of courses in chiropractic record-keeping, the courses to be selected and specified by the Board in its final order.

DONE and RECOMMENDED this 27th day of October, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division Of Administrative Hearings this 27th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER

The following constitute rulings pursuant to Section 120.59 (2) Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF).

Petitioner PFOF:

1-20 are accepted either in whole or in part. Where not fully accepted, modifications have been made to conform to the

greater weight of the evidence as a whole, to distinguish between expert opinion accepted and expert opinion not accepted due to equivocations on the record, or opinions expressed without sufficient predicate to be accepted, or to assess the weight and credibility of the witnesses.

Proposal 5 specifically has been modified to more closely conform to the greater weight of the credible evidence as a whole.

Proposal 6 is mere recitation of testimony out of context and to the degree it has not been accepted within other findings, is modified and distinguished within the facts as found in FOF 20.

Proposal 20 has been accepted but only those matters material have been adopted in FOF 21.

Respondent's PFOF

1. and 3 are accepted and adopted except as subordinate or unnecessary.

2. is accepted but is irrelevant and not a disputed issue of material fact. Respondent waived any necessity for a subpoena by offering the materials to the prosecution. Moreover, he complained at formal hearing that the DPR attorney did not pick them up quickly enough.

4-6 are partly accepted in FOF 10 to the extent that Dr. Butler was tendered and accepted as an expert in chiropractic over objection, but the remaining parts of each of these proposals is rejected as mere argument and as merely a recitation of authority.

COPIES FURNISHED:

PAT GUILFORD, EXECUTIVE DIRECTOR BOARD OF CHIROPRACTIC

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

RAY SHOPE, ESQUIRE AND CYNTHIA SHAW, ESQUIRE

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

JOSEPH SMITH, D.C.

3822 WEST BROWARD BOULEVARD FORT LAUDERDALE, FLORIDA 33312

LAWRENCE A. GONZALEZ, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

BRUCE D. LAMB, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

Docket for Case No: 87-003810

Orders for Case No: 87-003810