STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2648

)

ANTHONY S. COCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 15, 1983, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Jerry F. Carter, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Charles A. Sullivan, Sr., Esquire

Post Office Box 2620

Vero Beach, Florida 32960 BACKGROUND

By administrative complaint filed on September 18, 1982, Petitioner, Department of Professional Regulation, Board of Chiropractic Examiners, has charged that Respondent, Anthony S. Coco, has violated Sections 455.241(1) and 460.413, Florida Statutes, in certain respects for which disciplinary action against his license as a chiropractic physician should be taken. In summary form, it is alleged that Respondent (1) failed to furnish upon request of a patient copies of all reports made of examinations of such patient in violation of Subsection 455.241(1), supra, and by not doing so, failed to perform a statutory duty placed upon a chiropractic physician in contravention of Subsection 460.413(1)(i); (2) failed to practice chiropractic at a level of care, skill and treatment recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances [460.413(1)(s)]; and (3) exercised influence on a patient to exploit the patient for financial gain in violation of Subsection 460.413(1)(o).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was forwarded by Petitioner to the Division of Administrative Hearings on September 29, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated October 26, 1982, the final hearing was scheduled for

February 15, 1983, in Vero Beach, Florida. At the final hearing, Petitioner presented the testimony of Thomas F. Murphy, Dr. Fred C. Blumenfeld and Robert Kehr, and offered Petitioner's Exhibits 1-4; all were received in evidence.

Respondent testified on his own behalf and presented the testimony of Dr. Murray Galbraith, Dr. Michael E. Nathenson and Dr. Charles Krasner, and offered Respondent's Composite Exhibit 1 which was received in evidence.

The transcript of hearing was filed on March 11, 1983. Proposed findings of fact and conclusions of law were filed by Respondent and Petitioner on February 21 and March 17, 1983, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

At the conclusion of Petitioner's case-in-chief, Petitioner conceded that insufficient evidence was presented to support Counts I and III of the administrative complaint, and the undersigned accordingly granted Respondent's motion to dismiss that portion of the charges. Remaining at issue is Count II which alleges that Respondent failed to practice chiropractic at a level of care, skill and treatment recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant thereto, Respondent, Anthony S. Coco, held chiropractic license number 0001508 issued by Petitioner, Department of Professional Regulation, Board of Chiropractic Examiners. He is authorized to practice chiropractic in the State of Florida and presently maintains an office at 65 Royal Palm Beach Boulevard, Vero Beach, Florida.

   
   

2. In response to a newspaper advertisement, Thomas A. Murphy visited the office of Respondent on May 13, 1980, regarding treatment of low back pain, impotence, nervousness, headaches and general aches and pains. Murphy had a 100 percent service-connected disability and was already being treated by a medical physician for other undisclosed ailments. Murphy was given a complete examination by Coco, including neurological and orthopedic tests. Additionally, eight x-rays were taken of the patient. As a general practice, Coco does not record negative (or normal) results on the patient's records. Because all tests except the x-rays were negative, the results of the examination were not reflected on Murphy's patient records. However, a detailed record of his findings were prepared in a request for authorization to provide chiropractic treatment forwarded to the Veteran's Administration (VA) on May 15, 1980. The request was later denied by the VA, and Murphy terminated his relationship with Respondent.

   
   

3. Murphy became involved in a dispute with a secretary in Coco's office and filed a complaint against him with Petitioner. Petitioner then retained the services of an outside consultant, Dr. Fred C. Blumenfeld, to examine Murphy's patient file. Blumenfeld was initially given an incomplete file to examine, and based upon his initial review of the incomplete file, concluded that Respondent failed to exercise reasonable care in his treatment of Murphy. That precipitated the instant proceeding. Prior to the final hearing, Blumenfeld gained access to the entire file, and upon examining the same, reached an opinion that no "malpractice" had occurred. Although he testified that he would

   have marked the x-rays differently, and would have noted all negative findings on Murphy's patient chart, he did not otherwise criticize Coco's treatment of Murphy, and saw no basis for the issuance of an administrative complaint.

   
   

4. Three other experts, including a nationally recognized professor of chiropractic and a former member of the Board of Chiropractic Examiners, each concluded that Coco's treatment of Murphy was proper and consistent with generally recognized standards of skill and care of chiropractors in the community. They also concluded that Coco's diagnosis of Murphy's ailments, as reflected on his patient notes and letter of May 15, were consistent with the x- rays taken of Murphy.

   
   

5. Although Mr. Murphy appeared at the final hearing, he did so reluctantly and had no complaint regarding his examination and the diagnosis rendered by Coco.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 128.57(1), Florida Statutes.

   
   

7. Subsection 468.413(1), Florida Statutes, enumerates the various grounds which authorize the Petitioner to take action against a license. As is pertinent here, it is charged that Respondent failed ". . .to practice chiropractic at a level of care, skill, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances."

   
   

8. The evidence herein discloses that Respondent treated the patient in question at a level of care, skill and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. Indeed, even the Board's own expert conceded as much, and, noted that he found no conduct that would warrant disciplinary action against Respondent. Under these circumstances, it must be concluded that Count II of the administrative complaint should be dismissed. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED.

DONE and ENTERED this 21st day of March, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 21st day of March, 1983.

ENDNOTE

1/ Parenthetically, it is noted that had the parties engaged in more communication and/or discovery prior to the hearing, the obvious insufficiency of the evidence might have come to light, thereby obviating the need for this proceeding.

COPIES FURNISHED:

Jerry F. Carter, Esquire

138 North Monroe Street Tallahassee, Florida 32381

Charles A. Sullivan, Esquire Post Office Box 2620

Vero Beach, Florida 32968

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jane Raker, Executive Director Board of Chiropractic Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002648

Orders for Case No: 82-002648