STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2646

)

KARL COHEN, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on February 8, 1983, and August 5, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jerry Frances Carter, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Gregory F. Esposito, Esquire

7240 Biscayne Boulevard

Miami, Florida 33138

The issue for determination at the final hearing was whether the license of the Respondent Karl Cohen should be disciplined for allegedly failing to provide a patient with an itemized statement of services rendered and not responding to a lawfully issued subpoena.

Joel Grebin, the complainant, Maxine Grebin, the former wife of the complainant, and John McDonough, medical investigator for the Department of Professional Regulation, testified for the Petitioner. Petitioner's Exhibits 1-

5 were offered and admitted into evidence. Karl Cohen, the Respondent, testified on his own behalf and Respondent's Exhibits 1-7 were offered and Respondent's Exhibits 1-4, 6 and 7 were admitted into evidence.

Proposed Recommended Orders containing findings of Fact have been submitted by the parties and considered in the preparation of this Recommended Order.

Then the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. At all pertinent times, the Respondent Karl Cohen was licensed as a chiropractic physician by the Florida Board of Chiropractic.

   
   

2. On or about September 5, 1976, Maxine Grebin sustained injuries in a roller skating accident. Mrs. Grebin sought treatment from the Respondent on September 24, 1976, and her treatment continued through December 3, 1976.

   
   

3. Thereafter, Mrs. Grebin instituted a civil proceeding against Gold Coast Roller Rink. During the pendency of the civil suit, Mrs. Grebin requested that the Respondent provide her or her attorney an itemized statement of the services rendered for purposes of the damages suit. Mrs. Grebin never received an itemized statement from the Respondent. On February 14, 1977, the Respondent mailed a bill and report to Mrs. Grebin's attorney and copy of the bill to Mr. Joel Grebin, the complainant in this case, on March 11, 1977.

   
   

4. When the Respondent failed to receive payment for services rendered by him to Mrs. Grebin, he filed suit in Dade County and after a trial, at which the Grebins appeared, received a final judgment on May 4, 1981, for $388 plus costs.

   
   

5. On September 25, 1981, the Respondent was visited at his office by Martin Brandies, a Department investigator. The Respondent furnished Brandies with his entire file concerning Maxine Grebin, and made copies of pertinent documents for him. Subsequently, on June 22, 1982, the Respondent was served with a subpoena by John McDonough, investigator for the Department. The documents requested were virtually identical to the documents previously provided to Brandies. 1/ Since the documents were previously voluntarily provided to the Department, the Respondent did not believe that he was required to furnish a second set of documents, and accordingly, did not comply with the subpoena duces tecum.

   
   

6. At the hearing on February 8, 1983, the Petitioner moved to amend Count II of the Administrative Complaint to charge a violation of Section 460.413(1)(n), Florida Statutes, rather than Section 460.413(1)(h), Florida Statutes. The motion to amend was denied.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. By Administrative Complaint dated September 3, 1982, the Respondent Cohen was charged with violating Section 460.413(1)(i), Florida Statutes, by failing to perform a statutory or legal obligation placed upon a licensed chiropractic physician, specifically, failing to furnish the complainant an itemized bill as required by Section 460.41, Florida Statutes, and Section 460.413(1)(h), Florida Statutes, by failing to keep written chiropractic records, patient histories, and examination results. 2/ Additionally, Count 1 charged the Respondent with failing to comply with a subpoena duces tecum issued on June 22, 1982, which required production of all patient records, x-rays, billing statements and insurance forms pertinent to Maxine Grebin. 3/

   
   

9. The Petitioner has demonstrated that the Respondent failed to comply with a lawfully issued subpoena. This violation of Section 460.413(1)(w),

   Florida Statutes was de minimis, considering the Respondent's understandable confusion since he had voluntarily furnished the same documents on a prior occasion to a different Department investigator. Notwithstanding the confusion, however, the Respondent was under a duty to either comply with the subpoena or challenge it in an appropriate forum.

   
   

10. The Petitioner failed to establish by clear and convincing evidence that Maxine Grebin made a demand on the Respondent for an itemized bill which the Respondent failed to provide as required by Section 460.41, Florida Statutes. Moreover, no evidence was presented to demonstrate a violation of Section 460.413(1)(h), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED

That the Board of Chiropractic enter a Final Order finding the Respondent guilty of violating Section 460.413(1)(w), Florida Statutes, and imposing a reprimand pursuant to Section 460.413(2), Florida Statutes

DONE and ENTERED this 16th day of January 1984, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 16th day of January 1984.

ENDNOTES

1/ The only difference in the documents was that the subpoena requested copies of x-rays which the Respondent stated at final hearing were unavailable since they were either lost or misplaced.

2/ Section 460.413(1)(n), Florida Statutes, requires a chiropractic physician to keep written chiropractic records justifying the course of treatment of a patient, including, but not limited to, patient histories, examination results, and test results.

3/ Although no statute was cited regarding this violation, Section 460.413(1)(w), Florida Statutes is the apparent authorization for this alleged violation.

COPIES FURNISHED:

Jerry Frances Carter, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Gregory F. Esposito, Esquire 7240 Biscayne Boulevard

Miami, Florida 33138

Ms. Jane Raker, Executive Director Florida Board of Chiropractic

Old Courthouse Square Building

130 North Monroe Street Tallahassee Florida 32301

Frederick Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002646

Orders for Case No: 82-002646