STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-964

)

RUDOLPH C. FREYEISEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on June 23, 1983, in Fort Myers, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was prosecuted on an Administrative Complaint filed by the Department of Professional Regulation in May 1982 against the Respondent, Rudolph C. Freyeisen, and served on the Respondent in March 1983. The Administrative Complaint alleges that the Respondent violated Section 480.046(1)(b), Florida Statutes, by deceitfulness, incompetence, and gross negligence in the administration of a colonic irrigation, also referred to as a colonic massage, to Debra McCardell on March 31, 1980.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Rudolph C. Freyeisen, pro se

Post Office Box 9471 Marietta, Georgia 30065

ISSUES

During the course of the hearing, the Respondent raised the timeliness of the proceedings against him and argued that the delay by the Department in bringing the charges against him had prejudiced his ability to defend the charges. This motion was taken under advisement, and, because the Department had released its investigator who was knowledgeable of the events relating to the delay, both sides were given the opportunity to present testimony in writing. This process has delayed the entry of this order. 1/

The facts reveal that the Department became aware of the incident involving Ms. McCardell in April 1980 and even had her examined by a physician in May of that year; yet the investigation was not forwarded to the Department until November 1981. No real explanation of this delay was offered, and, as a result, the Administrative Complaint did not issue until May 1982. Therefore, the Respondent was prejudiced by the failure of the Department to charge him when

the Department had full knowledge of the facts upon which the complaint is based. However, to prevent further delay in the resolution of this matter which might occur upon appeal of this case on a recommended order of dismissal, and because a full hearing on the merits was conducted, a full finding on the case will be presented. The sole issue is whether the Respondent is guilty of the charges as alleged.

FINDINGS OF FACT

1. The Respondent, Rudolph C. Freyeisen, is a licensed masseur holding licenses number MA 0003363 and MA 000141 issued by the Department of Professional Regulation.

   
   

2. On March 31, 1980, the Respondent administered a colonic irrigation to Debra McCardell (now Ballard) at Natural Health Center, Inc., 1515 Southeast 46th Lane, Cape Coral, Florida.

   
   

3. Ms. McCardell had sought treatment at the Center because of extreme constipation. She had called for an appointment prior to going to the Center with her husband.

   
   

4. The Respondent told Ms. McCardell that there was a doctor available on the premises and that he could contact the doctor and have him available. (Tr. 17-18.) A doctor, who practiced in the same building, normally supported the Center; however, at the time of Ms. McCardell's visit, this doctor was not seeing patients due to an injury. Another doctor, who was seeing his patients, was on call and was available by appointment to see clients of the Center. (Tr. 197-198.)

   
   

5. The Respondent gave Ms. McCardell a proper pretreatment examination and found no contradictions which would have required Ms. McCardell to be seen by a doctor. At the time of this proctological examination, Ms. McCardell had no observable hemorrhoids. The Respondent did feel hardened stool in Ms. McCardell's colon.

   
   

6. The Respondent used a colonic irrigation machine to administer the treatment to Ms. McCardell. This machine functions by inducing water into the colon through a polished metal speculum, approximately four inches long and five-eighths of an inch in diameter, which is inserted into the rectum. The water pressure is not more than two pounds per square inch, and the speculum is designed to be forced out of the rectum by a pressure greater than two pounds per square inch. (Tr. 174.)

   
   

7. Normally, after water is placed in the colon, the masseur massages the abdomen in a circular motion descending along the large colon. This loosens fecal matter and assists the client in passing stool. Properly performed, the procedure cannot harm the body. (Tr. 91.)

   
   

8. Discomfort from the natural distention of the colon and from cramps caused by gas are frequently associated with the treatment and are expected, as with an enema. The pressure of the water and gas are released by operation of a valve, which permits the water to flow out of the colon. (Tr. 97, 172.)

   
   

9. When Ms. McCardell saw the Respondent, she was complaining of severe constipation and a prolonged history of bowel problems. During her treatment, the speculum was forced out of the colon on several occasions, and the pressure was released on several other occasions. The Respondent discontinued the

   treatment after Ms. McCardell continued to complain of discomfort and pain. At the conclusion of the unsuccessful treatment, Ms. McCardell defecated. (Tr.

   19.)

   
   

10. Passage of an enlarged, hardened stool can cause hemorrhoids to appear. (Tr. 101.)

    
    

11. After treatment and defecation, Ms. McCardell experienced pain in her rectum. She determined that she had severe hemorrhoids and contacted the Center desiring to see the doctor. The Respondent advised her that she could see the doctor in two or three days (she could not recall exactly) when he was scheduled to be at the Center. Ms. McCardell refused this offer and, after four days, saw Dr. Drulans. She delayed seeking medical assistance because her husband did not like to pay her medical bills. The examination at the hospital revealed that she had severe hemorrhoids and bruises in the rectal area. She was also seen by Dr. Mufdi for the same complaint during the month of May. She complained of a bloody discharge and pain; however, Dr. Drulans determined that the bleeding was vaginal in nature. (Tr. 27, 54-55.)

    
    

12. Ms. McCardell saw Dr. Rectine on May 5, 1980, through arrangements with the Department's investigator as part of the investigation of Respondent. At the time, Ms. McCardell was complaining of tenderness and swelling in the area of the right ovary and fallopian tube. Dr. Rectine discovered objective evidence of swelling in her physical examination of Ms. McCardell; however, external and internal examination, x-ray examination, ultrasound examination, and, ultimately, a laparoscopy did not reveal any trauma to the colon or chronic disease. Based upon Ms. McCardell's description to her of the manner in which the speculum was inserted and Ms. McCardell's association of the onset of the symptoms with the colonic treatment, Dr. Rectine concluded that it was possible that the treatment had caused Ms. McCardell's problem. It would be difficult to insert the speculum in the rectum with a client in the position Ms. McCardell was in, as described by Dr. Rectine, and impossible to do so without some trauma to the bowel. Having participated in a demonstration of the technique used to insert the speculum and having seen it, Dr. Rectine was inconclusive about the ability of the procedure to have caused Ms. McCardell's problem. (Tr. 106-107, 107-110.)

    
    

13. Ms. McCardell did not state at hearing the manner in which the speculum was inserted. She did not mention any discomfort related to insertion of the speculum to the Respondent or in her testimony about the incident. Based upon the size of the speculum and upon the demonstration by Dr. Rectine and the Respondent, it would have been impossible for the speculum to have contacted Ms. McCardell's ovary. The speculum could not have caused the bruises to the rectum. The hemorrhoids were not caused by the speculum, but by downward; pressure, most likely when passing the stool after the treatment.

    
    

14. Ms. McCardell's husband had a history of assaulting her. It is as likely that any injury to her abdomen was from her husband's assaultive conduct as from the Respondent's treatment, and no evidence of trauma from any source was ever discovered. (Tr. 52, 53.)

    
    

    CONCLUSIONS OF LAW

    
    

15. The Department of Professional Regulation has jurisdiction to bring the instant Administrative Complaint, and this Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.

16. The sole issue is whether the Respondent is guilty of the alleged violation of Section 480.046(1)(b), Florida Statutes.

    
    

17. Concerning the allegations, the whole case against the Respondent is dependent upon the credibility of the complainant, Ms. McCardell. Clearly, Ms. McCardell thought a doctor was present; however, her testimony at hearing is consistent with the Respondent's explanation that there was a doctor available on call. There was a doctor available on call and regularly available one day per week while the regular doctor was recovering from an injury. The Respondent's statement was not shown to have been made to induce Ms. McCardell to an action and was not shown to be false, although Ms. McCardell drew a wrong conclusion from it.

    
    

18. The allegations of incompetence and gross negligence are dependent upon Ms. McCardell's description to Dr. Rectine of the manner in which the speculum was inserted and her association of the onset of her complaints with the treatment. Concerning the position she was in, Ms. McCardell offered no testimony. Only her statement to Dr. Rectine, upon which Dr. Rectine based her opinion, was described in the records. Dr. Rectine said it would be very difficult to insert the speculum in a supine position and only then by causing trauma to the bowel. Yet, Ms. McCardell stated that the speculum was inserted three times. Dr. Rectine said the act of inserting the speculum in the position described by Ms. McCardell would have caused pain. Ms. McCardell did not reference a pain associated with the insertion of the speculum but with regard to the flow of water into the colon. It is concluded that the Respondent's preparatory procedures and insertion of the speculum were proper.

    
    

19. Another alleged basis for the charges relates to introduction of water into the colon. The Respondent stated the pressure involved is less than two pounds per square inch, and that the speculum would come out if there were more than two pounds of pressure per square inch. Ms. McCardell said the speculum came out two to three times while the Respondent performed the procedure. The equipment apparently worked as it was supposed to work. The Respondent said that Ms. McCardell's discomfort was due to distention of the colon. Dr. Rectine stated there are no nerves in the colon to sense anything but pressure, and that this is uncomfortable. The Respondent said the pressure was reduced by opening a valve and letting the water out. Ms. McCardell said that water was pumped in and sucked out, and that when it went out the pain was alleviated. Not only was the machinery in order, but the Respondent was listening to Ms. McCardell and reducing the pressure and her discomfort. When it became apparent that Ms. McCardell could not handle the discomfort, the Respondent ceased the treatment. The Respondent was not negligent in operating the machinery and inducing water into Ms. McCardell's colon.

    
    

20. Lastly, there are the physical symptoms. It is noted that Ms. McCardell's complaints changed between her first examination on April 4, 1980, and May 5, 1980. She initially complained of hemorrhoids and rectal bruises to Dr. Drulans. Dr. Rectine stated that passage of large, hardened stool could cause hemorrhoids. Ms. McCardell went to the Respondent for treatment because she was constipated. Later, when Ms. McCardell saw Dr. Rectine, she complained of tenderness and swelling in the area of her right ovary and fallopian tube. Although objective evidence of this complaint was observed by Dr. Rectine, she could only attribute this problem to the Respondent's treatment based upon Ms. McCardell's statement connecting the onset of pain with the treatment. Yet, as stated above, the insertion was proper, the irrigation procedure was proper, and there was no physical cause identified by physical, x-ray, ultrasound, or laparoscopic examination. Under such circumstances, the cause of Ms.

    McCardell's abdominal problem must be considered in light of her history of emotional problems and being assaulted by her husband. Certainly, considerable doubt exists that the Respondent's treatment was the cause of Ms. McCardell's complaints. Had the speculum been inserted in such a manner to cause the problem, it would have caused a trauma that would have been observable during laparoscopy. There was no evidence of trauma. If the speculum was inserted so that no trauma occurred, then there was no way to injure Ms. McCardell's ovary and fallopian tube. Similarly, Ms. McCardell complained of hemorrhoids caused by the treatment. However, the only significant downward pressure on the rectum was from stool.

    
    

21. When looking for explanations, the simplest is often the most accurate. The most simple explanation of Ms. McCardell's hemorrhoids was by her passing the stool which had caused her to seek treatment. The most simple explanations of Ms. McCardell's abdominal problem would be related to (1) being assaulted by her husband, (2) a gynecological problem related to her vaginal bleeding, (3) the constipation problem, or (4) some combination of the above.

    
    

22. The facts to support the allegations do not hold together well upon scrutiny. The Respondent is not guilty of violations of Section 480.046(1)(b), Florida Statutes, as alleged in the Administrative Complaint.

RECOMMENDATION

Having found the Respondent, Rudolph C. Freyeisen, not guilty of the allegations contained in the Administrative Complaint, it is recommended that the Administrative Complaint filed against the Respondent be dismissed.

DONE and RECOMMENDED this 29th day of November, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 29th day of November, 1983.

ENDNOTE

1/ See Appendix.

APPENDIX

Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Rudolph C. Freyeisen Post Office Box 9471 Marietta, Georgia 30065

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jane Raker, Executive Director Board of Massage

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000964

Orders for Case No: 83-000964