f STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF CHIROPRACTIC EXAMINERS, ) STATE OF FLORIDA )

)

Petitioner, )

)

vs. ) CASE NO. 76-1355

)

R. H. GRANT, D. C., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Vero Beach, Florida, on September 13, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

Post Office Box 1752 Tallahassee, Florida

For Respondent: Charles A. Sullivan

1245 20th Street Post Office Box 3

Vero Beach, Florida 32960 ISSUE PRESENTED

Whether Respondent's license as a chiropractor should be suspended or revoked for alleged violation of Section 460.13(3)(f) and (h), Florida Statutes.

At the commencement of the hearing, the Administrative Complaint and Notice of Hearing were amended to reflect alleged violations of Chapter 460 instead of Chapter 468, Florida Statutes.

FINDINGS OF FACT

1. Respondent is a licensed chiropractor in the State of Florida and was so licensed at the time of the alleged violations. He holds License No 2167 issued by the State Board of Chiropractic Examiners.

   
   

2. On December 24, 1975, pursuant to a request of Randy Spector for a blood test, Respondent extracted a blood sample from Spector. At this time, Respondent informed Spector that he would send the blood sample to MET-PATH laboratories for testing and that the results would be back in approximately a week or ten days. A few days later Spector visited Respondent's office and was informed by him that the tests were fine and that he was in good health, but he did not have the results back from the laboratory. Respondent's wife, who was present, told Spector that the laboratories do not always send the test back

   unless they are asked for or unless something was wrong. This sounded like "double talk" to Spector and he asked Respondent for the test results.

   Respondent said that he would call the lab on the phone and obtain the results. On January 2, 1976, Spector again visited Respondent's office and was provided the report of blood analysis. Respondent explained some of the entries on the report and after so doing, Spector asked him to sign the report. Respondent did so. Thereupon Spector gave him a check for $15.00 in payment for the test and was provided a receipt. (Testimony of Spector, Petitioner's Exhibits 1,2 & 3)

   
   

3. Spector was now convinced that the analysis of his blood had not been made by MET-PATH laboratories and therefore called that company several times during the next week or so. Each time he was informed by that concern that they had not received any of his blood for testing from Respondent. On January 5, 1976, Spector's legal counsel wrote a letter to Respondent advising him that Spector believed that the test results were fabricated and asserted a claim for malpractice and fraud. Respondent's counsel responded by letter of January 19 denying the allegations and stating that "if there was any error, it was simply an error in transposition of any test results and there was no resulting damage of any nature whatsoever to your client". (Testimony of Spector, Respondent's Exhibits 1 & 2).

   
   

4. Spector contacted Dr. George Fica, a chiropractor who had been treating him and his wife. He told him of his complaint against Respondent and indicated that the matter was going "to be blown sky high" and that the press would be involved. However, Spector told Fica that if Respondent apologized, he would drop the matter. He showed Fica the blood test results and Fica told him that they were in normal limits but that some of the tests would have required the use of a laboratory. Fica talked to the Respondent about Spector's complaints and his claim that MET-PATH Laboratories had not done the work. Respondent stated that he had done it with a machine in his office. Fica then questioned him about certain tests such as triglycerides, which required laboratory analysis. Respondent then informed him that he didn't do the work in his office, but that he was using many labs for blood work and that his secretary had typed the wrong information on Spector's report. (Testimony of Fica)

   
   

5. About January 12th or 13th, Spector went to Respondent's office and told him that the matter had gotten out of hand and that he wanted to straighten it out. Spector checked Respondent's tape recorder to make sure it was not running and also looked up and down the hallway outside his office and then closed the door. During the course of the conversation, Respondent apologized for not sending Spector's blood sample to MET-PATH and told him that he had run the tests in his own office and that they had been transposed in error. Spector told Respondent it would cost him a lot of money to go to court and indicated that the matter should be settled. (Testimony of Spector; Respondent)

   
   

6. It was stipulated that Respondent had not sent Spector's blood sample to any laboratory for analysis.

   
   

7. Respondent testified that he had originally planned to send Spector's blood to MET-PATH but due to a previous fire that destroyed much of his office, he had no usable mailing cartons for this purpose. Therefore, he did those tests that he could perform on a machine in his office. A number of the tests could not be done on the machine and he was unaware that his secretary had typed entries for such tests on the report given to Spector. Respondent speculated that the secretary must have mistakenly used figures from another patient's blood test when preparing the report. This explanation is not deemed credible in view of Respondent's contradictory statements in this regard to Spector and

   Fica as set forth in the foregoing findings. The laboratory cost for preparing a blood analysis is approximately $10.00. (Testimony of Resp., Pet.'s Exh. 4)

   
   

8. Respondent has been a chiropractor for approximately 13 years and enjoys an excellent reputation for competence in his field. An associate, who has been in his office for the past several months, has never observed him engage in an unethical practice. (Testimony of Respondent, Fica, Gordon)

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner seeks to discipline the Respondent for violations of Section 460.13(3)(f) and (h), Florida Statutes, which provide pertinently as follows:

   
   

   "460.13 Record of certificates; grounds for suspension and revocation of certificates; procedure. -

   * * *

   (3) The board, pursuant to the procedure prescribed in this act, shall have the authority to discipline any applicant for license, or the holder of a license to practice as a chiropractic physician, who is found guilty by the board of one or more of the following:

   * * *

   (f) Making any untrue, false, fraudulent, misleading, deceptive, extravagant, or grossly improbable claims or statements concerning the science or practice of chiropractic;

   * * *

   (h) That he is in any way guilty of any deception, misrepresentation, or fraud in the practice of chiropractic;

   
   

   It is considered that the facts of this case do not warrant a determination that Respondent violated Section 460.13(3)(f). That statutory provision by its terms is intended to deal with only those situations wherein a practitioner misstates the benefits or results that can be obtained from using chiropractic services.

   Such is not the case here.

   
   

10. As to the alleged violation of Section 460.13(3)(h) it is concluded that Respondent engaged in deception in the practice of chiropractic by his actions with respect to Randy Spector. Although the evidence showed that it is not customary for a chiropractor to extract blood and provide a patient with the results of a blood analysis unconnected with diagnosis and treatment of a complaint, Section 460.11, F.S. which defines the authorized functions of a chiropractic physician is broad enough to include such an isolated blood test, and, accordingly, falls within the term "practice of chiropractic."

    
    

11. It is apparent that if Spector had not become suspicious of Respondent's actions, he would have been misled by the incorrect report provided to him. The evidence establishes that Respondent was well aware that certain of the tests had not been performed by the fact that he explained the report to Spector. It is inconceivable that he would not have become aware of and pointed out any discrepancies at that time. Further, Respondent's equivocation and varying statements regarding the preparation of the report lead to the inescapable conclusion that he deliberately sought to deceive Spector as to

    preparation of the blood analysis. This is so despite the fact that Respondent could have profited little by his action due to the minimal charge for the work.

    
    

12. Although it is possible that Spector's health could have been impaired if, in fact, he had been unaware of a faulty blood condition with regard to one or more of the tests not actually performed, there is no indication that such was the case. Neither is there any showing that Respondent has previously been disciplined during his years of practice. It is therefore believed that adverse action with respect to his license is not required and that a reprimand is sufficient in the interests of the public health.

RECOMMENDATION

That the Florida Board of Chiropractic Examiners issue a reprimand to Respondent, R.H. Grant, for violation of Section 460.13(3)(h), Florida Statutes.

DONE and ENTERED this 25th day of October, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida

Charles A. Sullivan 1245 20th Street Post Office Box 3

Vero Beach, Florida 32960

Docket for Case No: 76-001355

Orders for Case No: 76-001355