R. FLEMING, D.C., )
Respondent. )
This case was heard pursuant to notice on July 17, 1979, in Titusville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. Entry of the Recommended Order in this cause was delayed by stipulation of the parties to permit them greater time to submit the proposed findings. The Petitioner's proposal was received on September 10, 1979, and the Respondent's was received on September 12, 1979.
This case was presented upon a second amended administrative complaint containing two counts against L. R. Fleming, D.C., License #1239, filed by the Board of Chiropractic Examiners. The Second Amended Administrative Complaint alleged that the Respondent was guilty of violation of Sections 460.13(3)(h) and (m), Florida Statutes, through his acts as alleged in the Second Amended Administrative Complaint. The issue presented was whether the Respondent had committed the acts alleged and thereby violated Sections 460.13(3)(h) and (m), Florida Statutes.
For Petitioner: Paul W. Lambert, Esquire
For Respondent: Louis V. Cianfrogna, Esquire
L. R. Fleming is a chiropractic physician licensed by the Florida State Board of Chiropractic Examiners and holds License #1239.
Dr. L. R. Fleming caused to be published in the Today Newspaper an advertisement, a copy of which was introduced into evidence as Petitioner's Exhibit 1. This advertisement read as follows:
CHIROPRACTORS SEEK RESEARCH VOLUNTEERS
The International Pain Control Institute in conjunction with the New York Chiropractic College is presently engaged in what is the most extensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignments and utilizes a screening process called Contour Analysis.
Volunteers are being sought for screening. Contour Analysis enables taking a three- dimensional picture (called Moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient symptomatology, and levels of tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasms, muscle imbalance, spinal distortions and scoliosis.
There is no charge to participating volunteers, since the doctors are contributing their time, service, and facilities for the program. Final processing and evaluation will be done at the New York Chiropractic College.
Anyone wishing to be a volunteer may telephone participating doctors directory for information or an appointment.
MERRITT ISLAND TITUSVILLE MELBOURNE
(doctor's (doctor's Dr. Lyle name deleted) name deleted) Fleming
Phone 254-3343
The advertisement above was published in the Today Newspaper on or about April 1, 1978. Gladys Teate, of Melbourne, Florida, read this advertisement on or about April 1, 1978, and made an appointment with dr. Fleming for contour analysis on April 11, 1978.
Gladys Teate kept the appointment on April 11, 1978, and had a contour analysis performed at Dr. Fleming's office. The process of contour analysis consisted of the taking of certain personal data together with symptomatology from Gladys Teate by one of the doctor's assistants. Thereafter, the doctor's assistant took a Moire photograph of Teate's back. Teate was then seen by Dr. Fleming, who performed an elementary examination of Teate's back and explained the Moire photograph to her.
Teate had no recollection of the contour analysis, Dr. Fleming's examination, or any subsequent events to include any oral representations made
by Dr. Fleming. However, records reflect that x-rays were taken of Teate at Dr. Fleming's office. Thereafter, a thorough chiropractic examination was performed by the doctor, who prepared a written diagnostic recommendation, a copy of which was introduced as Petitioner's Exhibit 3. Teate was unclear as to whether she saw Dr. Fleming on one or two (2) occasions; however, she was given a bill for
$10 for a chiropractic examination and a bill for $45 for x-rays upon leaving Dr. Fleming's office. There was no charge for the contour analysis.
No competent evidence of Dr. Fleming's indicating that further examination and diagnosis was free was presented.
No evidence was introduced that the research program described in the advertisement was not a legitimate research program.
CONCLUSIONS OF LAW
Dr. Fleming is charged with violation of Sections 460.13(3)(h) and (m), Florida Statutes. Subsection (h) provides that the Board may discipline a licensee who is found guilty of any deception, misrepresentation, or fraud in the practice of chiropractic. The advertisement which gave rise to this prosecution seeks volunteers for screening through contour analysis, said analysis to be correlated with leg deficiency, patient symptomatology, and levels of tenderness. The advertisement further provides that there will be no charge to volunteers because the chiropractic physicians involved are contributing their time, service and facilities. The evidence establishes that Gladys Teate receive a contour analysis at no charge. The witness' recollection of the events surrounding her complete chiropractic examination, the taking of
x-rays, and Dr. Fleming's diagnosis of her condition are so vague that no finding can be made nor conclusion drawn regarding violation of Section 460.13(3)(h), Florida Statutes.
Subsection (m) provides that a licensee whose conduct is reasonably likely to deceive or defraud the public is guilty of unprofessional conduct and may be disciplined by the Board. Again, Gladys Teate obtained at no charge the services set out in the advertisement. Again, her recollection of the events surrounding her thorough chiropractic examination, the taking of x-rays, and the preparation of Dr. Fleming's written recommendations are so vague that no finding can be made nor conclusion reached regarding violation of Section 460.13(3)(m), Florida Statutes.
It is inherent that the Petitioner has the burden of proof in proving the allegations contained in the Administrative Complaint. The Petitioner presented the testimony of Gladys Teate to prove its allegations. Ms. Teate is a white female, 49 years of age, who is employed as the curator of the Florida Wildlife Sanctuary and Wildlife Hospital in Melbourne, Florida. Her faculties did not appear to be impaired in any degree. Her recollection of specific salient events concerning the rendering of services for which she was charged was so vague or contradictory that it could not form the basis of a finding of fact regarding the alleged violations by Dr. Fleming.
