STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 82-487

)

ANTHONY CALABRO, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 4, 1982 and August 3, 1982, in Clearwater, Florida. The issue for determination at the hearing was whether respondent's license to practice chiropractic should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on January 25, 1982, as amended on March 16, 1982.

APPEARANCES

For Petitioner: Tina Hipple

400 West Robinson Street Orlando, Florida 32801

For Respondent: Joseph G. Donahey, Jr.

13584 49th Street North, Suite A Clearwater, Florida 33520

INTRODUCTION

By a two-count Administrative Complaint filed on January 25, 1982, as amended on March 16, 1982, respondent is charged with violations of Sections 460.412, 460.413(1)(u) and 460.413(1)(w) Florida Statutes. The factual allegations of the Complaint relate to his activities with regard to two patients, Diana Avery and Gail Henke, in 1978 and 1980. Motions to dismiss the Complaint and to further amend the Complaint have previously been denied.

At the hearing, petitioner presented the testimony of Diana Avery, Gail Henke, John Gaffney, D.C., who was accepted as an expert witness in the field of chiropractic techniques, treatments, modalities and scope of practice, and Terry McKenna, a Pinellas County Deputy Sheriff. Respondent testified in his own behalf and also presented the testimony of Fenola Fisher and Rose Oppenheimer.

Received into evidence were Joint Exhibits 1 and 2, petitioner's Exhibit A and respondent's Exhibits 1, 2 and 3.

Subsequent to the hearing, the parties filed proposed recommended orders. To the extent that the parties' proposed findings of fact are not included in

this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, as well as observation of the demeanor of the witnesses, the following relevant facts are found:

1. At all times pertinent to this proceeding, respondent Calabro has been licensed as a chiropractic physician in Florida, having been issued licensed number 1755.

   
   

2. In March of 1978, Diana Avery, then a sixteen (16) year old junior in high school, went to respondent for the treatment of recurrent pain in her kidney area, headaches, dizziness and swelling in her feet, ankles and hands. She had been referred to the respondent by her stepfather who was also one of the respondent's patients. At the time of her initial visit, Miss Avery had never been to a chiropractor and had never had a breast examination or a pelvic examination. She continued to go to respondent for treatment until early June, 1978, far a total of approximately fourteen (14) visits. During her treatments, only respondent and Miss Avery were in the treatment room.

   
   

3. During her treatment sessions, Miss Avery wore a patient gown which was open in the back, but tied at the neck, and underpants. On her initial visit, respondent untied the patient gown and, while she was sitting up on the examination table, respondent instructed her to hold her arms out to the side and he then placed both his hands on her two breasts. He made a comment to her about the large size of her breasts. On several subsequent appointments, respondent untied Miss Avery's gown and placed both hands on her breasts. On one occasion respondent stood behind her and, with both his hands, fondled her breasts.

   
   

4. On several occasions, respondent would instruct Miss Avery to remove her underpants and lie with her back on the examination table, with her knees up and her feet positioned on the table. Respondent would then insert, without the benefit of gloves, or other protective covering or lubrication, one or more of his fingers into her vagina and manipulate his fingers in and out of her vagina, while resting his other hand on her abdomen. On one occasion, the same procedure was followed except that Miss Avery was lying face dawn on her stomach. The insertion of respondent's fingers into Miss Avery's vagina occurred on from four to six occasions.

   
   

5. During at least one of the treatment sessions, Miss Avery was positioned face dawn on the examination table and respondent, while adjusting her neck, moved her hair aside and began kissing the back of her neck. On another occasion, he took her hand and placed it on his genital area. After her last appointment with respondent, Miss Avery needed to pick up some insurance forms. Respondent told her to come into his office after the treatment. When she went into his office, the lights were out, respondent pinned her against the wall and attempted to kiss her. He also was lifting her skirt and attempting to put his hand into her underwear. He advised her that a sexual relationship with him would be good for her.

6. The patient records for Miss Avery do not reflect that either a breast examination or a pelvic examination were performed by the respondent. During the period of time between March and June of 1978, Miss Avery was taking birth control pills to regulate her menstrual cycle. While a breast examination by a chiropractor may be proper for a patient taking birth control medication, the appropriate method of performing such an exam is to palpate each breast with the fingertips of both hands to determine if there are any masses or growths. When a pelvic or gynecological examination is necessary, it is proper to have a nurse in the room, to inform the patient of the procedure and to utilize surgical gloves or other protective covering and a lubricating agent. Such examinations should be recorded on the patient's medical records.

   
   

7. Gail Henke went to respondent from May to October of 1980 for treatment for injuries she received in an automobile accident. She was experiencing numbness in her hips and legs, back pain and problems with her left knee. Mrs. Henke was then 26 years old, was married and had one child. During the treatment sessions with respondent, she would wear only a gown which tied in the back, with nothing underneath, and lie on the examination table on her stomach. On many occasions, particularly near the end of her treatment period, respondent would insert the fingers of one of his hands, without protective covering or lubrication, into Mrs. Henke's vagina while placing his other hand on her buttocks or lower back.

   
   

8. Several days prior to her last visit for treatment by the respondent, Mrs. Henke called his office and spoke to Rose Oppenheimer, respondent's receptionist, about a problem she was having with a difficult bowel movement or hemorrhoids. On her October 15, 1980, appointment, respondent adjusted her back, left the treatment room and returned with an ointment which he rubbed on her from her shoulders down into her vaginal area. He then placed a plastic- covered pillow under her abdomen and a towel between the upper thigh portion of her legs. Without saying anything to her, respondent straddled the table, placed one hand on her buttocks or lower back area and inserted the fingers of his other hand into her vagina. Then, both respondent's hands were removed from Mrs. Henke's body and she heard the sound of a metal zipper. She then felt one of respondent's hands back on her hip or lower back, felt fingers go back into her vagina, then pull out, and then felt something else go into her vagina and two hands on her back. Believing that respondent had placed his penis into her vagina, Mrs. Henke raised up on her elbows and asked respondent what had happened. Respondent said nothing. Respondent then withdrew all parts of his body from Mrs. Henke, but remained at the foot of the table. Some two to three minutes later, respondent came around to the head of the examination table, crouched or knelt down, and told Mrs. Henke that nothing had happened. She repeatedly asked respondent what he had done and told him what she thought had happened. He explained that she could have experienced such a sensation from the towel which was placed between her thighs or from hemorrhoids.

   
   

9. Mrs. Henke immediately told her husband about the October 15, 1980, incident with respondent and he urged her to report the matter to the sheriff's office. At the request of the Sheriff's office, Mrs. Henke went to respondent's office on October 31, 1980 equipped with a body bug or transmitter and attempted to elicit from him information as to what transpired during her October 15th appointment. Respondent repeatedly denied that anything had happened and attempted to explain to her that the sensation she felt could have resulted from the relaxation of distended blood vessels in the area of her hemorrhoids.

   During the hearing, respondent testified that he conducted a visual inspection for hemorrhoids on Mrs. Henke on October 15, 1980, but found no evidence of hemorrhoids.

10. The vaginal manipulations performed by the respondent on both patients Avery and Henke are not acceptable chiropractic manipulations, techniques or modalities. There is no recognized chiropractic treatment or technique which includes the insertion of fingers into the patient's vagina.

    
    

11. There is a form of treatment performed by chiropractors known as the Logan Basic Technique. Respondent states that he used this technique on both Miss Avery and Mrs. Henke. This form of treatment requires the patient to lie on her stomach and involves the placement of the chiropractor's thumb at a point between the anus and the vagina and the application of pressure at that point, with the chiropractor's other hand being placed on the patient's lower back. While it is possible that the chiropractor's hand or fingers may come in contact with the patient's vaginal area during the administration of the Logan Basic Technique, it would not be appropriate for the chiropractor's fingers to actually enter or penetrate the vagina.

    
    

    CONCLUSIONS OF LAW

    
    

12. Respondent is charged in this proceeding with violations of Section 460.412, relating to sexual misconduct, Section 460.413(1)(u), practicing or offering to practice beyond the scope permitted by law, and Section 460.413(1)(w), violation of any of the provisions of Chapter 460. Sexual misconduct in the practice of chiropractic is addressed in Section 460.412, Florida Statutes. That section states:

    
    

    The chiropractic physician-patient relation- ship is founded on mutual trust. Sexual misconduct in the practice of chiropractic means violation of the chiropractic physician-patient relationship through which the chiropractic physician uses said rela- tionship to induce or attempt to induce the

    patient to engage, or to engage or attempt to engage the patient, in sexual activity out- side the scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of chiropractic is prohibited.

    
    

    While this section was not in existence at the time of respondent's activities regarding patient Diana Avery, it has previously been ruled in this proceeding that the activities prohibited by Section 460.412 constitute a substantial reenactment of prior activity proscribed in the statutes which regulated the practice of chiropractic in 1978.

    
    

13. The petitioner in this proceeding carries the burden to prove by competent, substantial evidence the factual allegations contained in the Administrative Complaint and that such facts constitute grounds for which disciplinary action may be taken against a licensee. Here, the petitioner presented sufficient evidence of a competent, substantial nature that respondent engaged in sexual misconduct in his relationship as a chiropractic physician with patients Diana Avery and Gail Henke.

    
    

14. Other than the performance of a pelvic examination using proper techniques, there was no medical justification for the insertion of respondent's fingers into a patient's vagina. There was no medical record of such an

    examination having been performed on patients Avery and Henke and respondent has not presented any evidence that such an examination was performed on these patients. The only explanation offered by the respondent to explain his coming into contact with these patients' vaginal areas was that he may have done so while treating them with the Logan Basic Technique. This explanation, when compared with the demeanor and testimony of the witnesses presented by the petitioner, fails in credibility.

    
    

15. The actions of respondent in fondling, on more than one occasion, the breasts of Miss Avery, the insertion and movement of fingers into the vaginas of patients Avery and Henke, the attempted kissing of Miss Avery after an office treatment and the insertion of respondent's penis into the vagina of Mrs. Henke during a treatment session constitutes sexual misconduct, practicing beyond the scope permitted by law and a violation of Chapter 460, Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent be found guilty of violating Sections 460.412, 460.413(1)(u) and 460.413(1)(w), Florida Statutes, and that his license to practice as a chiropractic physician in Florida be revoked.

Respectfully submitted and entered this 18th day of May, 1983, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18 day of May, 1983.

COPIES FURNISHED:

Tina Hipple, Esquire

Department of Professional Ms. Jane Raker Regulation - Legal Services Executive Director Post Office Box 1900 Board of Chiropractic

Orlando, Florida 32802 130 North Monroe Street Tallahassee, Florida 32301

Joseph G. Donahey, Jr., Esquire 13584 49th Street North

Suite A

Clearwater, Florida 33520

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000487

Orders for Case No: 82-000487