of the License of Ivan C. Ross, D. C. ) CASE NO. 75-1229 License No. 997 )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on December 18, 1975 at
Winter Haven, Florida.
Representing the Ronald C. LaFace, Esquire Board of Chiropractic 101 East College Avenue Examiners: Tallahassee, Florida 32304
Representing Dr. Clay A. Terry, Esquire Ivan C. Ross, Post Office Box 1260
By Administrative Complaint filed July 14, 1975, the Florida State Board of Chiropractic Examiners seeks to revoke, annul, withdraw, or suspend the right of Ivan C. Ross, D.C. licensee, to practice chiropractic on the grounds of unprofessional conduct and that he no longer possesses a good moral character. Both grounds for revocation or suspension stem from licensee's alleged misconduct during the treatment of a female patient from August, 1974 to April, 1975.
Only the complaining witness presented testimony against the licensee. Thereafter Dr. Ross entered a general denial to any misconduct on his part involving the complaining witness; and Mrs. Ross, the licensee's wife, attested to her husband's good moral character. Accordingly the case against Dr. Ross rests upon the credibility of the complaining witness.
Mrs. Phyllis Adams started going to Dr. Ross for treatment of low back pain in August, 1974. On her initial visit he performed a complete physical examination and took x-rays of her back. The physical included a pelvic examination. Two or three days later Dr. Ross commenced treating Mrs. Adams three times a week. This continued through October, when the treatments were reduced to two per week during November. Thereafter she was treated once in February, once in March, and once on April 1 and 2, 1975.
Each time Mrs. Adams visited Dr. Ross for treatment she was directed to completely disrobe and given a hospital gown open down the back. After Dr. Ross worked on her back she would be turned over and he would manipulate her arms and sockets, hip joints, and probe with his fingers in the abdominal and pelvic area. He initially used a vibrator on her abdomen and pubic area which sexually aroused her. She finally told him that the use of the vibrator was embarrassing to her because of the sexual arousement and requested he not use it any more.
He agreed to comply with her request. He explained to her the treatment in the abdominal and pubic areas was because many nerves which controlled muscle tensions ended in those areas and that manipulation there helped relax those muscles. On several occasions Dr. Ross removed her hospital gown to facilitate the arm manipulations and tossed it aside while he completed her treatment. On other occasions the gown was placed on the chiropractic table for her to lie on.
Initially Mrs. Adams felt the treatments were helping her back, but toward November she decided they were not worth the expense and first slowed the frequency of treatment, then stopped them on a regular basis.
On March 28, 1975 Mrs. Adams turned her ankle when she stepped off the edge of her patio and fell. She did not experience any particular pain at the time, but on March 31 she had difficulty getting out of bed, dressing, and into her car to go to work. Her twenty-year-old daughter had to help her with these evolutions. At school that day she had a very painful and stiff back. The following day, April 1, 1975, she was no better and, after getting herself to school, made an appointment to see Dr. Ross and drove to his office. Because of her limitation of motion it was necessary for Dr. Ross to help her undress. He advised her that her back was really messed up, and after she was completely undressed placed her on the table with the robe under her. There was no one else in the office when she arrived and during the time she was in the examining room she did not hear the bell which rang when someone passed through the front door into the outer office.
Dr. Ross took the vibrator and told her he was going to use it because she really needed to get her muscles relaxed; and, if she got sexually aroused, to just let herself go as it was necessary for her muscles to relax. He lifted her legs and spread them apart and, while he massaged the abdomen and pubic area with the vibrator on his hand, the patient had an orgasm. This testimony was unrebutted except for Dr. Ross' testimony that nothing occurred in the office on April 1 other than normal office practice procedure, and his general denial that anything of a sex nature occurred.
The complaining witness testified that thereafter Dr. Ross moved up to the head of the table on which she was lying, took her hand and put it on his trousers and asked her what she was going to do about his situation as he had become sexually aroused while watching her. She advised him she was not going to have sex with him and that his condition was his problem. After removing part of his clothes he straddled her legs and placed his genitalia on her pubic area and began manipulating himself against her. During this time and prior thereto the witness could not raise herself off the table because of her back. When she thought he was about to have a climax she told him she didn't want to get that "stuff" on her. Dr. Ross then got up, went into another room and returned shortly thereafter with Kleenex and without clothes. While he was gone she was unable to raise herself off the table. Upon his return he straddled her legs as before, lay on top of her and moved his body back and forth against her until he had a climax. She could feel his penis against her leg but there was no penetration. When he got up he walked to the next room saying he would be right back to help her. Shortly thereafter he returned fully clothed, helped her to get off the table and get dressed. He then assisted her to her car. No one else was in the outer office when she departed.
The following day, April 2, 1975, Mrs. Adams' back was no better. She knew that Mrs. Ross was normally in her husband's office on Monday, Wednesday, and Friday and should be there that Wednesday. Although she returned to the office for treatment, she resolved not to go in if Mrs. Ross was not there.
Upon her arrival April 2, Mrs. Ross was present. Mrs. Adams received heat treatment and massage for her back and the vibrator was not used.
Because of the April 1 incident Mrs. Adams resolved not to go back to Dr. Ross. Someone at school where she worked suggested another chiropractor who she called, and from whom she received treatment on April 4. His diagnosis of her problem was sacro-iliac and lumbo-sacrol strain with an associated lumbo- sacrol myofascitis. There was also a considerable limitation of motion as noted in his report admitted into evidence as Exhibit 2.
The incident of April 1 preyed on the mind of Mrs. Adams for several weeks before she finally discussed it with her minister, who ultimately put her in contact with the proper authorities to get the complaint before the Board of Chiropractic Examiners.
On cross examination Mrs. Adams admitted she did not yell or scream, or resist during the April 1st treatment. She was aware that no one else was in the office and stated that the reason for her failure to yell was that she believed she had a better chance of not being hurt if she remained passive. She did not get off the table for the stated reason she was physically unable to do so unassisted. She returned on April 2 because she still had a bad back problem and knew no place else to turn for help.
As to the reason for delaying some four to six weeks before reporting the incident Mrs. Adams gave no pat answer. The incident remained constantly on her mind as a "bad dream". The explanation of the nerves ending in the pubic area became recognized as "hog wash" and her gullibility in being so taken in became self-embarrassing. The thought that she may not have been the only one so treated and that this could have happened to her daughter also played a factor in her decision to report the incident. She was fully aware of the difficulties and subsequent embarrassment to which she would probably be subjected. The fact that she first contacted her pastor is significant in this regard.
In his testimony Dr. Ross did not relate his version of the events that occurred in his office on April 1. He denied removing all his clothes and masturbating in the presence of Mrs. Adams. His record of Mrs. Adams' visits showed some 36 visits prior to April 1. He acknowledged that he usually gave his female patients a pelvic examination and that his patients disrobed and donned hospital gowns. He did not deny the use of the vibrator or that the treatment he gave Mrs. Adams on April 1 resulted in her having an orgasm. He denied anything occurred on April 1 of a sex nature. He was aware of no reason Mrs. Adams would have to falsely accuse him.
Mrs. Ross testified that she was normally in the office on Monday, Wednesday, and Friday and that no one ever entered the examining room while Dr. Ross was with a patient.
From the foregoing it is concluded that Mrs. Adams' testimony was not so improbable or untrustworthy that it was not believable. None of the details of the events she related were contradicted by Dr. Ross and he had full opportunity to do so. The cross examination of Mrs. Adams appeared more intended to show that she encouraged the actions of Dr. Ross rather than that the events of which she complained did not occur.
CONCLUSIONS OF LAW
It is noted that Dr. Ross is charged with violating two provisions of Chapter 460 Florida Statutes viz 460.13(3)(b) and (m). The latter provides as grounds for revocation:
"(m) that he is guilty of unprofessional conduct which is defined to mean: Any conduct which is reasonably likely to deceive or defraud the public; sharing office space with any person illegally practicing any of the healing arts; the employing either directly or indirectly of any unlicensed chiropractic physician whose license has been suspended; or the violation of the code of ethics or any provisions thereof adopted by the board."
While one would normally think that acts similar to those complained of in this case would constitute unprofessional conduct the language above quoted precludes such a finding. At least two canons of statutory construction appear to support this holding. The first rule of construction is that the words of the statute shall be given their normally accepted meaning. The statute clearly states what constitutes unprofessional conduct and unless the acts committed by Dr. Ross are reasonably likely to defraud or deceive the public or violate the code of ethics or any provision thereof adopted by the board they do not constitute unprofessional conduct.
The second rule of statutory construction here involved is that which provides the expression of one thing is the exclusion of another. By naming those acts which constitute unprofessional conduct the legislature has excluded all others. Accordingly many acts which, under the statutes regulating other professions would constitute unprofessional conduct, could not be found to be unprofessional conduct as defined by s460.13(3)(m). The conduct complained of was not of a nature to deceive or defraud the public. No testimony was presented that the treatment to which Mrs. Adams testified was of a nature to defraud or deceive or that the witness was deceived. While the hearing officer is inclined to agree with Mrs. Adams' conclusion that the explanation of the numerous nerves ending in the pubic area was a lot of "hog wash", this is not a fact of which official notice can be taken and no expert testimony on this subject was presented.
No issue was raised regarding the licensee sharing office space with another who was illegally practicing any of the healing arts, nor was any issue raised regarding the employment of an unlicensed practitioner.
No code of ethics was offered into evidence. Accordingly, even if one exists a violation of such code would not constitute unprofessional conduct in this instance. From evidence outside the record it appears that a code of ethics of the Chiropractic Association does exist, but such code has never been adopted by the Board. Accordingly, even if this code proscribed the conduct complained of it would not constitute statutory grounds for the revocation of Dr. Ross' license.
The other provision of the statutes herein charged as grounds for revocation of license is Section 460.13(3)(b) which provides:
"That the holder thereof no longer possesses a good moral character; . . .
Section 460.07 Florida Statutes contains the qualifications of applicants for a license to practice chiropractic. One of these is that the applicant possesses a good moral character. Since Dr. Ross was issued a license as a chiropractic physician pursuant to that provision of the statutes, this constitutes prima facie evidence that he had a good moral character when first licensed. The issue at hand is whether the acts complained of, which were proven to be basically true, show that the licensee herein no longer possesses a good moral character.
"Moral" pertains to character, conduct, intention, social relations etc. U.S. v. Carollo, 30 F. Supp 3 (D. C. Mo); while "conduct" relates to personal behavior, deportment, or mode of action. Thus moral character is weighed on the scale whose limitations are prescribed by the mores of the society in which we live. Unfortunately, in so serious a setting as that in which the issue is here presented, good or bad moral character, like beauty, often lies in the eye of the beholder. Thus a determination of what demonstrates good moral character is largely subjective. There is no well defined criteria of what exactly constitutes a good moral character. The criteria changes as society changes. Some things considered morally wrong just a few years ago are now accepted by a majority of our society as no longer evil. The resolution of this issue is largely left to one's knowledge, experience, and understanding of the mores of our present day society.
Here we are concerned not with a determination of generally good or bad moral character, but what degree of moral character is required of a licensee in the healing arts. Society may reasonably require a doctor, dentist, chiropractor, etc. to maintain, with his patients, a higher standard of conduct than is required, for example of a clerk in a department store with a customer. This is so due largely to the confidential and serious nature of the doctor- patient relationship where not only the skill, but also the moral character of the chiropractor is of great importance to the interests of the patient and the state.
The acts committed by Dr. Ross with Mrs. Adams demonstrate moral character below the standard required of a chiropractor, and amply show that Dr. Ross no longer possesses good moral character.
From the foregoing, it is concluded that Dr. Ivan C. Ross is not guilty of unprofessional conduct as defined by 460.13(3)(m) Florida Statutes. It is further concluded that Dr. Ross no longer possesses the good moral character required of a chiropractor licensed by the Florida State Board of Chiropractic Examiners. The acts committed by Dr. Ross which demonstrate this
lack of moral character are of a nature so serious as to bring into question his capability to function as a chiropractic physician. It is therefore,
RECOMMENDED that Dr. Ivan C. Ross' license as a chiropractic physician be revoked.
DONE and ENTERED this 6th day of January, 1976, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
