STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5707

)

STANLEY M. TURNER, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, the Hearing Officer designated by the Division of Administrative Hearings on October 2 and 3, 1990 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Michael A. Mone', Esquire

E. Rene Alsobrook, Esquire 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Harold M. Braxton, Esquire

9100 South Dadeland Boulevard Suite 400

Miami, Florida 33156

Donald C. Dowling, Esquire

501 East Atlantic Avenue Delray Beach, Florida 33483

PRELIMINARY STATEMENT

An emergency Order of Suspension was entered by the Secretary of the Department of Professional Regulation against Dr. Turner on July 26, 1990. Dr. Turner filed a demand for a hearing on August 2, 1990. The Department filed its Administrative Complaint on August 31, 1990, alleging violations of the Florida Chiropractic Act, Chapter 460, Florida Statutes. The Complaint alleged several types of misconduct, including:

1. Instructing employees to change patient records to reflect treatments which were not actually given;

2. Engaging in sexual misconduct with an employee who was also seen as a patient, in her capacity as a patient, while treating her for injuries sustained in an automobile accident through fondling her breasts, vaginal area and buttocks;

   
   

3. Engaging in sexual misconduct with the patient, J.B.;

   
   

4. Overbilling patient J.B. for treatments not administered;

   
   

5. Double billing separate insurance carriers for treatments given to patient B.H.

All allegations with respect to paragraphs (5), (6) and (7) of the Administrative Complaint were withdrawn during the hearing (Tr. 17, 147). Only the allegations encompassed in paragraphs 1 and 2 above remained.

The Department forwarded the matter to the Division of Administrative Hearings on September 12, 1990, and by Order dated September 17, 1990 the hearing was scheduled for October 2 and 3. At the opening of the hearing, Dr. Turner argued the Motion for Dismissal which had been served on September 6, 1990 and filed with the Division of Administrative Hearings on September 10, 1990. The motion requested that the prosecution be terminated for failure of the Department to have provided a hearing on the Order of Emergency Suspension which had been entered on July 26, 1990. The motion was denied. If an agency believes that immediate emergency licensure suspension is required, it may enter an immediate suspension order under Section 120.60(8), Florida Statutes (1989), "but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon." Id. Under Rule 28-6.011(3) Florida Administrative Code, the revocation action should be filed within 21 days of the emergency action. The prosecution must proceed promptly upon request of the aggrieved licensee, Rule 28-6.011(2) Florida Administrative Code, but the administrative hearing is only on the allegations made in the Administrative Complaint, not on the propriety of the emergency action taken by the licensing authority. That emergency action is a final action which is only subject to review in the Court of Appeals. See Section 120.60(8), which specifically incorporates the provisions of Section 120.54(9)(a), including the judicial review provisions of Section 120.54(9)(a)(3). See also Section 120.68(1) Florida Statutes (1989).

FINDINGS OF FACT

1. At all times pertinent to the Administrative Complaint, Dr. Turner has been licensed as a chiropractor in the State of Florida, holding license CH 1454. He has maintained offices as a chiropractic physician at 7650 South U.S. Highway One, Fort Pierce, Florida 34952 since May 19, 1985.

   
   

   Prior Discipline

   
   

2. The Board of Chiropractic Examiners has maintained other prosecutions against Dr. Turner. On August 28, 1972 a Final Order was entered revoking Dr. Turner's license for solicitation for prostitution and giving oral medication and injections to a person, but his licensure was reinstated by Order dated September 11, 1974. Thereafter, on July 14, 1977, his licensure was revoked for a second time. Although the Administrative Complaint which had been filed in the second prosecution had alleged sexual misconduct towards patients and staff, those charges were not sustained. The revocation was imposed for obtaining prescriptions for narcotics, stimulants or habit-forming drugs under false

   pretenses from medical doctors and dentists in an amount so large as to show either drug abuse by Dr. Turner or the offering and administration of drugs to patients, employees, or other persons without lawful authority to do so.

   Ultimately, Dr. Turner was relicensed, and reestablished his practice in 1985. Alteration of Records

3. The applicable paragraph of the Administrative Complaint alleges that

   
   

   On or about October 25, 1989 a former employee of the Respondent issued a sworn statement, to the State Attorney's Office. In her statement the former employee stated that the Respondent had her change her therapist's notes on a patient to reflect that certain treatments were not being used. The former employee also stated in this interview that the Respondent

   frequently had her and "other employees" change patient notes in order to mislead future "attorneys" reviewing said notes.

   
   

4. Turner hired Debbie Corderre as a therapist and staff member in 1987, and she remained in his employ into 1989. One of the patients to whom she provided therapy was patient E.M.

   
   

5. The physical therapists in Dr. Turner's office are not persons who are graduates of a physical therapy school approved for the educational preparation of physical therapists by an accrediting agency recognized by the Council on Post-Secondary Accreditation or who have passed an examination administered by the Department of Professional Regulation to determine fitness to practice as a physical therapist. See Section 486.031 Florida Statutes (1989). Rather, they are persons who have received brief on-the-job training of two weeks or so to provide such therapy as might be ordered by Dr. Turner as part of his office practice.

   
   

6. Ms. Corderre testified that Dr. Turner had ordered her to alter the medical records of E.M. to remove diathermy as a therapy given. Diathermy is the heating of body tissues due to their resistance to the passage of high- frequency electromagnetic radiation, electric currents, or ultrasonic waves. (Dorland's Illustrated Medical Dictionary, 26th Edition 1985).

   
   

7. The office therapies included massage, traction, electric muscle stimulation, the use of hot packs and ultrasound treatment. Electric muscle stimulation and ultrasound treatment involved the use of a machine with pads; gel was put on the patient and the pads were attached. Ultrasound was performed using the same machine; lotion was placed on the patient and an instrument attached to the machine was rubbed over the body part being treated. How these treatments differ from diathermy, or what constituted diathermy at Dr. Turner's office, was never adequately explained at the hearing.

   
   

8. The office notes maintained for Dr. Turner's patients were broken into four sections, each of which were identical, and permitted notes to be made for four separate visits on one sheet. The notes for each individual visit was made up of five parts. The first included a space for the date and abbreviations for the different therapies next to which a check mark could be placed. These spaces were checked off by therapists for billing purposes. None of these spaces ever were checked in any of the extant records for patient E.M. Below

   the abbreviations was a larger space for therapists notes, in which the therapist would write the therapy provided to the patient during that visit. Below the therapist's note area was a space of equal size containing the acronym SOAP, in which Dr. Turner would make his notes when he saw the patient, after his therapist had already completed the therapy. The fourth portion of the record of a visit is a line to note any material dispensed to the patient during the visit, and the fifth portion is a line to note any X-rays that may have been taken.

   
   

9. In none of the records for patient E.M. have any of the abbreviations for any of the different types of therapy been checked off, even though Dr. Turner maintains that these notes are the source of billing information (Tr. 240-41). It is incomprehensible that from the period October 27, 1987 through April 12, 1988, over a total of 59 visits, that a therapist never correctly filled out the portion of the patient record which another employee would need in order to render a bill for the service provided that day. By way of contrast, however, the records for another patient entered into evidence, B.S.,

   do for the most part, have check marks in that portion of the record for a visit which would be useful for billing. The inference which is drawn from the absence of any billing entries in the records for patient E.M. over so long a period of time is that the records which purport to be the contemporaneous records for E.M. are in fact records generated after the fact by the therapist, Debbie Corderre at the instruction of Dr. Turner. Dr. Turner's contention that Ms. Corderre failed to keep appropriate records is rejected.

   
   

10. Ms. Corderre testified that Dr. Turner had instructed her to remove reference to diathermy given to patient E.M. Dr. Turner counters by noting that the insurance claim forms submitted by his office on behalf of patient E.M. to the Workers Compensation insurance carrier for E. M.'s employer never showed that diathermy was administered. Dr. Turner argues that Ms. Corderre's testimony must be wrong, for the insurance billings would have shown a charge for diathermy, if the testimony of Ms. Corderre were correct. Dr. Turner's point is well taken, but it does not negate the core of Ms. Corderre's testimony. Ms. Corderre had told the State Attorney's office before the hearing that she thought Dr. Turner had instructed her to change the records to remove any reference to having provided patient E.M. with ultrasound therapy.

    
    

11. Based upon all the evidence I find that the records for patient E.M. were changed by Ms. Corderre in some significant way at the direction of Dr. Turner. Because the original records were necessarily lost, and all that remains are revised records, it is not possible to determine with certainty in what way the records were altered. On this aspect of her testimony the recollection of Ms. Corderre is faulty. Her testimony that she changed all records for patient E.M. is persuasive, and the absence of any entry in the portion of the records used for billing reinforces this conclusion. Why Dr. Turner wanted to have the records changed and the manner in which he told Ms. Corderre to change them are not particularly significant. Dr. Turner regarded the change as sufficiently important to have Ms. Corderre spend almost a full day of filling out the newly created records. He then manufactured what are supposed to be contemporaneous entries of his own in the portion of the records which are his notes (the SOAP notes).

    
    

    Improper Sexual Touching of a Patient

    
    

12. Dr. Turner employed Brenda Stanley, who later became Brenda Sika by marriage, during the period August 1988 to 1989. She was trained as a physical therapist at the office.

13. About a month after she was employed, in September 1988, Brenda Sika was injured in an automobile accident, and had gone to the hospital emergency room. She discussed her condition and her need for treatment with Dr. Turner, who agreed to examine her and treat her. Dr. Turner first saw Brenda Sika as a patient on September 13, 1988.

    
    

14. Ms. Sika's principle complaints included back pain over the whole back, but which was worse in the lower back; neck pain, and ankle pain, all of which had resulted from the automobile accident. She also had bruising and tenderness of her chest due to the action of her seat belt in the accident.

    
    

15. Ms. Sika contends that while she was lying on her stomach in a treatment room on several occasions Dr. Turner had placed his hand on her ankle, and slid it up until his hand was on her buttocks, and that on one occasion he had placed his hands between her legs while she was lying face down, with the inside of his hands on the inside of her legs and his thumb on the outside. She also alleged that on the Sunday following the initial visit on September 13, she sought additional treatment from Dr. Turner, and in the course of that treatment he requested her to remove her bra, remained in the room while she undressed, and afterwards asked her to stretch out her arms, after which he felt her breasts, including placing his hand around the fleshy part of her breasts. Finally, Ms. Sika alleges that while in the X-ray room, Dr. Turner asked to check if her groin muscle had been pulled, and in the process used his thumb and index finger to squeeze or grip her in the groin.

    
    

16. It is difficult to accept the contention that Dr. Turner had engaged in inappropriate and unwarranted sexual touching of Ms. Sika's breasts, buttocks or groin area, in view of the continuing employment relationship. Ms. Sika had only recently been hired when she was injured. It seems unlikely that she would have remained in the employ of someone who had engaged in lecherous touching while she was supposedly being treated. She remained an employee of Dr. Stanley for a substantial amount of time, and only left that employment when she went to Michigan for her wedding. What is more significant, however, is that after she returned to Florida following her wedding, she decided to return to employment with Dr. Turner (Tr. 75). Ms. Sika did not tell other employees such as Deborah Coderre or Tammy Prescott that Dr. Turner had engaged in unwarranted sexual advances or made sexual innunendoes to her at the office.

    
    

17. With respect to the accusation of fondling of a breast, after the accident Dr. Turner had conducted an examination which included palpation in the area of the rib cage underneath the breast, where there was a bruise caused by the seatbelt in Ms. Sika's car. That sort of touching in an area of complaint is appropriate. The charge with respect to running Dr. Turner's hands from the ankle to the buttocks is unconvincing. Attempting to determine whether there was involvement of a groin muscle would be appropriate, but the description of the examination given by Ms. Sika would have constituted inappropriate conduct, had the examination occurred as described. As stated above, given her continued employment, and reemployment after she had left work with Dr. Tuner at the time of her wedding, the evidence of sexual misconduct is not convincing.

    CONCLUSIONS OF LAW

    
    

18. In an action for license revocation, the Department bears the burden of proving its charges by clear and convincing evidence, Ferris v. Turlington,

    510 So.2d 191 (Fla. 1987). Clear and convincing evidence is evidence which leaves no substantial doubt in the mind of the trier of fact. Slomowitz v. Walker, 429 So.2d 797 (Fla. 4 DCA 1983).

    
    

19. The evidence is clear and convincing that Dr. Turner required Ms. Corderre, one of his employees, to alter medical records of E. M. in a significant fashion. The nature of the alteration is not clear, but the evidence gives rise to a reasonable inference that the change was significant, for Dr. Turner would not have had an employee devote a substantial amount of time to this recreation unless the alteration were significant to him in some way. The evidence also is convincing that the alteration was not one to correct records and make them accurate, but to alter accurate information in a medical record. Such action is a violation of Section 460.413(1)(j) which forbids:

    
    

    Making or filing a report which the licensee knows to be false, . . . willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity of a licensed chiropractic physician.

    
    

    Dr. Turner not only induced Ms. Corderre to alter her records, but then filled in the SOAP portion of the record, which are his notes, to be consistent with whatever alteration he required Ms. Corderre to make.

    
    

20. The violation of Section 403.413(1)(j) necessarily means that Dr. Turner also violated Section 460.413(1)(i), which describes as a ground for discipline:

    
    

    Failing to perform any statutory or legal obligation placed upon a licensed chiro- practic physician.

    
    

    The improper conduct is the failure to maintain truthful records. This is, however, merely another way of viewing the conduct in intentionally altering records, and is not a separate violation of law.

    
    

21. Similarly, creation of false records violates Section 460.413(1)(n) Florida Statutes, which forbids:

    
    

    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.

22. The conduct also violates Section 460.413(1)(l) which prevents:

    
    

    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 accepted standards of treatment in the chiro- practic community.

    
    

23. The Department has not, however, demonstrated facts which would make out a violation of Section 460.413(1)(o), Florida Statutes, by exercising influence on a patient or a client in a manner so as to exploit the patient or client for financial gain, Section 460.412, by engaging in sexual misconduct in the practice of chiropractic, or Section 460.413(1)(y), Florida Statutes, by submitting to any third party payor a claim for service or treatment which is not actually provided to a patient. There is insufficient evidence to prove that any of the changes in the medical records for patient E.M. were made to justify a claim submitted to the insurance carrier for E.M.'s employer for treatment which was not actually provided. The nature of the records alteration which Dr. Turner had Ms. Corderre perform, and which he then performed with respect to his portion of the records may or may not relate to billing; it is simply impossible to tell from the record.

    
    

    Penalty

    
    

24. The alteration of medical records is a serious violation. Under the disciplinary guidelines of the Board of Chiropractic it would merit a penalty of the suspension of license for one year followed by two years probation. Rule 21D-16.003(t) Florida Administrative Code. Dr. Turner's past violations, however, also is a significant factor in determining the appropriate penalty.

It is difficult to assess the danger to the public involved in the alteration of the records, since the nature of the alteration is not clear. Neither is it possible to determine whether there was any actual damage, physical or otherwise, to the patient. These violations occurred approximately three years after Dr. Turner's last revocation was lifted, a rather brief time thus has passed since he was readmitted to practice, which weighs in favor of a more substantial penalty. Moreover, Dr. Turner has already had his license revoked on two prior occasions, which also weighs in favor of a significant penalty.

Not only did Dr. Turner use his position to cause one of his employees to alter records, he also altered the portion of the patient's records which are the chiropractic physician's notes, and the violation was willful. In view of the aggravating factors which have been demonstrated, pursuant to Rule 21D- 16.003(2), the penalty should be greater than the ordinary penalty for the substantive offense. Rather than placing Dr. Turner on probation or suspension, his license to practice should be revoked without right of reinstatement or relicensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Chiropractic enter a final order revoking the licensure of Dr. Turner, without right of reinstatement or relicensure.

RECOMMENDED in Tallahassee, Leon County, Florida, this 9th day of November, 1990.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5707

Rulings on the proposed findings by the Department:

1. Adopted in Finding 1.

2. Adopted in Finding 1.

3. Adopted in Finding 4.

4. Adopted in Finding 4.

5. Adopted in Finding 9.

6. Recounted in Finding 6, but the testimony that the alteration was to remove diathermy is not accepted.

7. Rejected as unnecessary, because not within in the allegations of the Administrative Complaint.

8. Rejected as unnecessary, because not within the allegations of the Administrative Complaint.

9. Rejected as unnecessary, because not within the allegations of the Administrative Complaint.

10. Rejected as unnecessary, because not within the allegations of the Administrative Complaint.

11. Rejected as unnecessary, because not within the allegations of the Administrative Complaint.

12. Rejected because the testimony was not sufficiently specific to establish that other medical records were altered.

    The testimony with respect to patient E.M. is sufficiently specific.

13. Rejected because the testimony was not sufficiently specific with respect to alteration of records other than those of E.M. Moreover, the charge made in paragraph 3 is not one with respect to purposeful mis-billing. See, Finding 3.

14. See, ruling on Finding 13.

15. Adopted in Finding 12.

16. Adopted in Finding 13.

17. Adopted in Finding 13.

18. Adopted in Finding 14.

19. The testimony is recounted in Finding 15.

20. The testimony is recounted in Finding 15.

21. The testimony is recounted in Finding 15.

22. The testimony is recounted in Finding 15.

23. The testimony is recounted in Finding 15.

24. The testimony is recounted in Finding 15.

25. The testimony is recounted in Finding 15.

26. The testimony is recounted in Finding 15.

27. The testimony is recounted in Finding 15. The testimony recounted in Findings 19-27 is rejected for the reasons stated in Finding 16.

28. Included in Finding 14.

29. Rejected as irrelevant.

30. Rejected as irrelevant.

31. Rejected as irrelevant to the allegations of the Administrative Complaint.

32. Adopted in Finding 2.

Rulings on findings proposed by Dr. Turner:

1. Adopted in Finding 1.

2. Adopted in Finding 1.

3. Rejected as unnecessary, because Dr. Turner's skills are not at issue.

4. Rejected as unnecessary, because Dr. Turner's skills are not at issue.

5. Rejected as unnecessary, because Dr. Turner's skills are not at issue.

6. Rejected as unnecessary, because Dr. Turner's skills are not at issue.

7. Adopted in Finding 12.

8. Adopted in Finding 13.

9 and 10. Rejected as irrelevant.

1. Rejected as unnecessary.

2. Generally accepted for the reasons given in Finding 16.

3. Rejected as unnecessary.

4. Rejected as unnecessary.

5. Rejected as unnecessary.

6. Adopted in Finding 16.

7. Adopted in Finding 17.

8. Rejected as unnecessary.

9. Rejected as unnecessary.

10. To the extent necessary, adopted in Finding 17.

11. Generally adopted in Finding 17.

12. Rejected as unnecessary.

13. Rejected as unnecessary.

14. Rejected as unnecessary.

15. Rejected as unnecessary.

16. Rejected as unnecessary.

17. To the extent persuasive, these arguments are covered in Findings 16 and 17.

18. Accepted in Finding 17.

19. Adopted in Finding 4.

20. Generally rejected as a recitation of testimony, and because the argument that Dr. Turner had not required Ms. Corderre to change records of diathermy is accepted, but the argument that Dr. Turner did not instruct Ms. Corderre to make some significant changes in E. M.'s record is rejected.

21. The testimony is recounted in Finding 10.

22. Rejected as unnecessary. What is significant is that Ms. Corderre changed records at the direction of the doctor, the exact nature of the change is not essential. See, Finding 11.

23. Rejected as unnecessary.

24. Rejected as unnecessary; any motivation Ms. Corderre might have had to be untruthful has been considered in evaluating her testimony.

25. Rejected as unnecessary, any motivation Ms. Corderre might have had to be untruthful has been considered in evaluating her testimony.

26. Rejected as unnecessary, any motivation Ms. Corderre might have had to be untruthful has been considered in evaluating her testimony.

27. Accepted in that the only findings made with respect to Dr. Turner's conducts are made with respect to the records of E.M.

28. Rejected as unnecessary.

29. Rejected. I have accepted most of the testimony of Ms. Corderre.

30. Rejected as unnecessary. No "Taylor" case is at issue here.

31. Rejected. See, especially Finding 9.

32. Rejected as unnecessary.

COPIES FURNISHED:

Patricia Guilford, Executive Director Department of Professional Regulation Board of Chiropractic

1940 North Monroe Street Tallahassee, FL 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Michael A. Mone', Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Harold M. Braxton, Esquire 9100 South Dadeland Boulevard Suite 400

Miami, FL 33156-7115

Donald C. Dowling, Esquire

501 East Atlantic Avenue Delray Beach, FL 33483

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005707

Orders for Case No: 90-005707