Petitioner: DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE
Respondent: BRYAN ABASOLO, D.C.
Judges: JOHN G. VAN LANINGHAM
Agency: Department of Health
Locations: Miami, Florida
Filed: Aug. 28, 2013
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Thursday, January 23, 2014.
Latest Update: Dec. 23, 2024
STATE OF FLORIDA
BOARD OF CHIROPRACTIC MEDICINE
sue
DEPARTMENT OF HEALTH,
- PETITIONER,
v. CASE NO.: 2011-14961
BRYAN ABASOLO, D.C.,
RESPONDENT.
/
ADMINISTRATIVE COMPLAINT
Petitioner, Department of Health, by and through its undersigned
counsel, files this Administrative Complaint before the Board of Chiropractic
Medicine against Respondent, Bryan Abasolo, D.C., and in support alleges:
1. Petitioner is the state department charged with regulating the
practice of chiropractic medicine pursuant to Section 20.43, and Chapters
456 and 460, Florida Statutes.
2. At all times material to this Complaint, Respondent was a
licensed chiropractic physician within the State of Florida, having been
issued license number CH 9438 on or about December 26, 2007.
3. Respondent’s address of record is 11046 SW 138 Place, Miami,
Florida 33186.
4. On or about January 8, 2011, A.L., then three years and two
months old, was involved in a motor vehicle accident and later that day
presented to a clinic where Respondent practiced, with complaints of
occasional bilateral cervical pain at severity level 3/10 with 10 being the
most severe.
5. Respondent conducted an initial examination of the patient on
January 8, 2011.
6. Palpation yielded negative results for pain, asymmetry, range of
motion, trigger points, and edema, and positive results for muscle tension
~ at a grade of 2 ona scale of 1-5, with 5 being the most severe.
7. Cervical range of motion was determined to be all normal.
8. Two orthopedic evaluations yielded negative findings, and two
others yielded positive left findings.
9. Neurological examination results were found to be within
normal limits.
10. The overall diagnosis for Patient A.L. was cervical sprain/strain.
11. The recommended treatment plan consisted of active release
technique, chiropractic care, neuromuscular re-education and therapeutic
exercise.
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12. Treatment began, by Respondent, on January 11, 2011, and
consisted of chiropractic adjustment bilaterally at C2, T11, and L1, and
therapeutic exercises of bicycle, row trainer, lateral trainer, hip flexion, hip
extension, lumbar trainer, and core trainer.
13. This treatment regimen was not appropriate for this patient,
given her symptoms and/or age.
14. This treatment regimen was not justified for this patient, in
terms of both quality and quantity, given her symptoms and/or age.
15. The records do not contain sufficient detailed information to
indicate how the therapeutic exercises were performed or for what period
of time.
16. Subsequent treatment episodes occurred on January 12*, 13,
21*, 26*, and 29*, April 6*, 8*, 9, 13*, 19, and 23*, and May 3*, 4*, 7*,
10*, and 11, 2011.
17. Dates designated with an asterisk (**”) are occasions when
Respondent was not the treating chiropractic physician. On those dates,
treatment was provided by another chiropractic physician practicing at the
clinic.
ive)
18. The treatment provided to Patient A.L. on every one of these
occasions was identical, as set forth above.
19. A letter in the medical file for Patient A.L., dated February 26,
2011, authored by the chiropractic physician/owner of the service facility
where the patient was being treated, stated that the patient had reached
maximum medical improvement and that no further treatment for her was
necessary.
20. A progress report was completed on April 23, 2011, by another
chiropractic physician treating Patient A.L. at the clinic.
21. This progress report indicates that all of the previous objective
symptoms had resolved, except for muscle tension, which had improved.
22. A report in the medical record for Patient A.L. prepared by
Respondent on May 11, 2011, indicated that all symptoms had resolved
and that the patient had reached the point of maximum medical
improvement and was being released from care.
23. This report, and a corresponding billing record, indicates that
the patient received a full regimen of treatment on May 11, 2011, despite
there being no symptoms documented.
Count One — Record Keeping
24. Petitioner re-alleges paragraphs one (1) through twenty (23) as
if fully set forth within this paragraph.
25. Section 460.413(1)(m), Fiorida Statutes (2010), provides that
failing to keep legibly written chiropractic medical records that identify
clearly by name and credentials the licensed chiropractic physician
rendering, ordering, supervising, or billing for each examination or
treatment procedure and that justify the course of treatment of the patient,
including, but not limited to, patient histories, examination results, test
results, X rays, and diagnosis of a disease, condition, or injury, is grounds |
for disciplinary action by the Board of Chiropractic Medicine.
26. Section 460.413(1)(ff), Florida Statutes (2010), provides that
violating any provision of this chapter or chapter 456, or any rules adopted
pursuant thereto, is grounds for disciplinary action by the Board of
Chiropractic Medicine.
27. Rule 64B2-17.0065 (Minimal Recordkeeping Standards), Florida
Administrative Code, provides, in pertinent part:
(1) These standards apply to all licensed chiropractic physicians
and certified chiropractic assistants. These standards also apply
to those examinations advertised at a reduced fee, or free (no
charge) service.
(2) Medical records are maintained for the following purposes:
(a) To serve as a basis for planning patient care and for
continuity in the evaluation of the patient’s condition and
treatment.
(b) To furnish documentary evidence of the course of the
patient's medical evaluation, treatment, and change in
condition.
(c) To document communication between the practitioner
responsible for the patient and any other health care
professional who contributes to the patient’s care.
(d) To assist in protecting the legal interest of the patient, the
hospital, and the practitioner responsible for the patient.
(3) The medical record shall be legibly maintained and shall
contain sufficient information to identify the patient, support
the diagnosis, justify the treatment and document the course
and results of treatment accurately, by. including, at a
minimum, patient histories; examination results; test results;
records of drugs dispensed or administered; reports of
consultations and hospitalizations; and copies of records or
reports or other documentation obtained from other health care
practitioners at the request of the physician and relied upon by
the physician in determining the appropriate treatment of the
patient. Initial and follow-up services (daily records) shall
consist of documentation to justify care. If abbreviations or
symbols are used in the daily recordkeeping, a key must be
provided. ,
(4) All patient records shall include:
(a) Patient history,
(b) Symptomatology and/or wellness care,
(c) Examination finding(s), including X-rays when medically or
clinically indicated,
(d) Diagnosis,
(e) Prognosis,
(f) Assessment(s),
(g) Treatment plan, and
(h) Treatment(s) provided.
(6) Once a treatment plan is established, daily records shall
include:
(a) Subjective complaint(s)
(b) Objective finding(s)
(c) Assessment(s)
(d) Treatment(s) provided, and
(e) Periodic reassessments as indicated.
(8) Provided the Board takes disciplinary action against a
chiropractic physician for any reason, these minimal clinical
standards will apply. It is understood that these procedures are
the accepted standard(s) under this chapter.
28. Respondent violated Section 460.413(1)(m), and/or Section
460.413(1)(ff), Florida Statutes (2010), and/or Rule 64B2-17.0065, Florida
Administrative Code, in one or more of the following ways:
a. _ the records fail to document the course of treatment, and
b, the records fail to justify the course of treatment.
29. Based on. the foregoing, Respondent violated Section
460.413(1)(m), and/or Section 460.413(1)(ff), Florida Statutes (2010),
and/or Rule 64B2-17.0065, Florida Administrative Code, by maintaining
insufficient medical records, which is grounds for discipline by the Board of
Chiropractic Medicine.
Count Two — Financial Exploitation
30. Petitioner re-alleges paragraphs one (1) through twenty-three
(23) as if fully set forth within this paragraph.
31. Section 460.413(1)(n), Florida Statutes (2010), provides that
exercising influence on the patient or client in such a manner as to exploit
the patient or client for financial gain of the licensee or of a third party
which shall include, but not be limited to, the promotion or sale of services,
goods or appliances, or drugs, is grounds for disciplinary action by the
Board of Chiropractic Medicine.
32. Section 460.413(1)(ff), Florida Statutes (2010), provides that
violating any provision of this chapter or chapter 456, or any rules adopted
pursuant thereto is grounds for disciplinary action by the Board of
Chiropractic Medicine.
33. Rule 64B2-17.005 (Exploitation of Patients for Financial Gain),
Florida Administrative Code, provides, in pertinent part:
(1) The overutilization of chiropractic services or practice by
exercising influence on a patient in such a manner as to exploit
the patient for financial gain of a licensee or a third party is
prohibited by Section 460.413(1)(n), Florida Statutes.
(2) Overutilization of chiropractic services or practice is defined
as services or practices rendered, or goods or appliances sold
by a chiropractic physician to a patient for financial gain of the
chiropractic physician or a third party which are excessive in
quality or quantity to the justified needs of the patient.
(3) Overutilization occurs when:
(a) The written chiropractic records, required to be kept by
subsection 460.413(1)(m), Florida Statutes, do not justify or
substantiate the quantity or number of chiropractic services,
practices rendered, or goods or appliances sold by a
chiropractic physician to a patient;
(b) A claim or claims for chiropractic services, practice, goods
or appliances is submitted to that patient or third party payor
representing multiple charges for one specific chiropractic
diagnostic service or treatment practice, good or appliance.
34. Respondent violated Section 460.413(1)(n), and/or Section
460.413(1)(ff), Florida Statures (2010), and/or Rule 64B2-17.005, Florida
Administrative Code, by rendering services that were excessive in quality
and/or quantity to the justified needs of the patient.
35. Based on the foregoing, Respondent violated Section
460.413(1)(n), and/or Section 460.413(1)(ff), Florida Statures (2010),
and/or Rule 64B2-17.005, Florida Administrative Code, by engaging in
financial exploitation, which is grounds for discipline by the Board of
Chiropractic Medicine.
Count Three — Standard of Care
36. Petitioner re-alleges paragraphs one (1) through twenty-three
(23) as if fully set forth within this paragraph.
37. Section 460.413(1)(r), Florida Statutes (2010), provides that
gross or repeated malpractice or the failure to practice chiropractic
medicine 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 is grounds for disciplinary action by the
Board of Chiropractic Medicine. The board shall give great weight to the
standards for malpractice in s. 766.102 in interpreting this provision.
38. Respondent violated Section 460.413(1)(r), Florida Statutes
(2010), in one or more of the following ways: |
a, _ by providing treatment that was*not appropriate for a patient
given that patient’s symptoms and/or age, and
b. by providing treatment in excess of what was justified for a
patient given that patient’s symptoms and/or age.
39, Based on the foregoing, Respondent violated Section
460.413(1)(r), Florida Statutes (2010), by failing to practice chiropractic
medicine 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, which is grounds for discipline by the Board
of Chiropractic Medicine.
WHEREFORE, Petitioner respectfully requests that the Board of
Chiropractic Medicine enter an order imposing one or more of the following
penalties: permanent revocation or suspension of Respondent's license,
restriction of practice, imposition of an administrative fine, issuance of a
reprimand, placement of the Respondent on probation, corrective action,
refund of fees billed or collected, remedial education and/or any other relief
that the Board deems appropriate.
57 (~ ;
SIGNED this _/° _ day of Cntspe , 2012.
FILED
DEPARTMENT OF HEALTH
DEPUTY CLERK
CLERK Angel Sanders
pate OCT 62 2012
John H. Armstrong, MD —
Surgeon General and Sec etary of Health
: - J @ fhe
Tari Rossitto-Van Winkle, R.N., J.D.
Assistant General Counsel!
Florida Bar #06139908
Florida Department of Health
Office of the General Counsel
4052 Bald Cypress Way, Bin C-65
Tallahassee, FL 32399-3265
Telephone (850) 245-4640 ext. 8139
Facsimile: (850) 245-4684
tari_rossitto-vanwinkle@doh.state.fl.us
PCP Date: September 27, 2012
PCP Members: Kevin Fogarty, D.C. and Wayne Wolfson, D.C.
~ NOTICE OF RIGHTS
Respondent has the right to request a hearing to be conducted in
accordance with Section 120.569 and 120.57, Florida Statutes, to be
represented by counsel or other qualified representative, to present
evidence and argument, to call and cross-examine witnesses and to have
subpoena and subpoena duces tecum issued on his or her behalf if a
hearing is requested.
NOTICE REGARDING ASSESSMENT OF COSTS
Respondent is placed on notice that Petitioner has incurred costs
related to the investigation and prosecution of this matter. Pursuant to
Section 456.072(4), Florida Statutes, the Board shall assess costs related to
the investigation and prosecution of a disciplinary matter, which may
include attorney hours and costs, on the Respondent in addition to any
other discipline imposed.
DOH v. Bryan Abasoio, D.C. 1
Case No, 2011-14961
Docket for Case No: 13-003278PL
Issue Date |
Proceedings |
Jan. 23, 2014 |
Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
|
Jan. 23, 2014 |
Joint Motion to Relinquish Jurisdiction filed.
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Jan. 16, 2014 |
Notice of Filing Affidavit of Service for David Miles Gladstone, D.C. filed.
|
Jan. 08, 2014 |
Notice of Taking Depositions (of Robert Butler, Jr. and Robert Radin) filed.
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Jan. 02, 2014 |
Petitioner's Notice of Taking Deposition Duces Tecum (of Brian Elias, DCM) filed.
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Dec. 19, 2013 |
Notice of Court Reporter filed.
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Nov. 27, 2013 |
Notice of Service of Petitioner's Responses to Respondent's First Set of Interrogatories filed.
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Nov. 25, 2013 |
Petitioner's Notice of Taking Deposition Ad Testificandum and Duces Tecum (of A.L.) filed.
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Nov. 25, 2013 |
Petitioner's Notice of Taking Deposition Ad Testificandum and Duces Tecum (of M.L.) filed.
|
Nov. 25, 2013 |
Petitioner's Notice of Taking Deposition Ad Testificandum (of Monica Borjas) filed.
|
Nov. 25, 2013 |
Petitioner's Notice of Taking Deposition Ad Testificandum and Duces Tecum (of Brian Elias) filed.
|
Nov. 25, 2013 |
Petitioner's Notice of Taking Deposition Ad Testificandum and Duces Tecum (of Bryan Abasolo) filed.
|
Nov. 21, 2013 |
Notice of Service of Respondent's Verified Answers to Petitioner's First Set of Interrogatories filed.
|
Nov. 18, 2013 |
Notice of Service of Respondent's Responses to First Request for Production and First Set of Interrogatories filed.
|
Oct. 22, 2013 |
Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for January 28 and 29, 2014; 9:00 a.m.; Miami, FL).
|
Oct. 17, 2013 |
Respondent's Motion to Reschedule Final Hearing filed.
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Oct. 14, 2013 |
Notice of Service of Respondent's Responses to First Request for Admissions filed.
|
Oct. 10, 2013 |
Notice of Service of Petitioner's Responses to Respondent's First Request for Production filed.
|
Oct. 08, 2013 |
Notice of Serving Petitioner's First Request for Production and First Set of Interrogatories to Respondent filed.
|
Oct. 04, 2013 |
Order Granting Continuance and Re-scheduling Hearing by Webcast (hearing set for January 14 and 15, 2014; 9:00 a.m.; Miami, FL).
|
Oct. 02, 2013 |
Respondent's Unopposed Motion for Continuance of Final Hearing filed.
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Sep. 26, 2013 |
Amended Notice of Hearing by Webcast (hearing set for October 28 and 29, 2013; 9:00 a.m.; Miami and Tallahassee, FL; amended as to Miami hearing location).
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Sep. 16, 2013 |
Notice of Service of Respondent's First Set of Interrogatories to Petitioner filed.
|
Sep. 13, 2013 |
Notice of Serving Petitioner's First Request for Admissions to Respondent filed.
|
Sep. 11, 2013 |
Notice of Petitioner's Intent to Admit Medical Records filed (not available for viewing). |
Sep. 10, 2013 |
Notice of Petitioner's Intent to Admit Medical Records filed.
|
Sep. 10, 2013 |
Amended Notice of Hearing by Webcast (hearing set for October 28 and 29, 2013; 9:00 a.m.; Miami and Tallahassee, FL; amended as to hearing dates and times).
|
Sep. 10, 2013 |
Order of Pre-hearing Instructions.
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Sep. 10, 2013 |
Notice of Hearing by Webcast (hearing set for October 29 and 30, 2013; 1:00 p.m.; Miami and Tallahassee, FL).
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Sep. 09, 2013 |
Respondent's First Request for Production of Documents filed.
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Sep. 06, 2013 |
Notice of Co-Counsel Appearance (Adrienne Rodgers) filed.
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Sep. 05, 2013 |
Joint Response to Initial Order filed.
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Aug. 30, 2013 |
Notice of Appearance (Michael Austin) filed.
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Aug. 29, 2013 |
Initial Order.
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Aug. 28, 2013 |
Petition for Formal Administrative Hearing filed.
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Aug. 28, 2013 |
Election of Rights filed.
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Aug. 28, 2013 |
Administrative Complaint filed.
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Aug. 28, 2013 |
Agency referral filed.
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