STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) Case No. 84-2019

)

THOMAS F. YANCEY, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Panama City, Florida, on November 18, 1985, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Edward C. Hill, Jr., Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Roger D. Patterson, Esquire

17208 West Hutchinson Road Panama City Beach, Florida 32407

ISSUE PRESENTED

Whether Respondent's license to practice chiropractic should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 460, F.S., as set forth in the Administrative Complaint, dated May 11, 1984.

This case arises as a result of charges filed by Petitioner in an Amended Administrative Complaint alleging that Respondent violated various provisions of Chapter 460, Florida Statutes, in performing procedures intended to terminate the pregnancy of a female patient in 1984, which resulted in a criminal conviction.

At the hearing, Petitioner presented the testimony of Alfred Clum, a Department investigator, Charles E. Robinson, Chief Investigator, Bay County Sheriff's Office, Dr. March A. Wolf, obstetrician and gynecologist, Patty Smith, Deputy Clerk, Bay County Circuit Court, David W. Morrison and Barbara Morrison. Respondent testified in his own behalf. Petitioner submitted 6 exhibits in evidence and Respondent submitted a late-filed exhibit. Although the parties were provided time to file an agreed transcription of tape recordings as a late- filed exhibit, such exhibit has not been filed as of this date.

At the commencement of the hearing, Petitioner amended paragraphs 11 and 17 of the Amended Administrative Complaint to correct scrivener's errors, thus changing the alleged violations of Section 460.413(1)(g) to 460.413(1)(q).

Similarly, paragraph 15 was corrected from Section 460.1413(1)(u) to 460.413(1)(u).

Although the parties were accorded a specified period in which to file post-hearing proposed findings of fact, they failed to do so.

FINDINGS OF FACT

1. Respondent Thomas F. Yancey was licensed to practice chiropractic in the State of Florida in 1966 and was so licensed at all times material to the administrative complaint herein. On May 15, 1984, an Order of Emergency Suspension was issued against Respondent's license by the Secretary of the Department of Professional Regulation which is still in effect. Respondent has never been licensed by the Florida State Board of Medical Examiners or Board of Osteopathic Medical Examiners. (Petitioner's Exhibits 1-4, Testimony of Respondent)

   
   

2. In August 1983, Barbara D. Morrison visited Respondent's office in Panama City, Florida, for the purpose of obtaining an abortion. She paid him

   $150.00, but obtained a refund because, according to her, "it didn't work." Respondent testified that Morrison had come to him at that time for an abortion, but that he had told her "I don't do that," but that he could arrange it for her if she needed it. He admitted that he gave her an examination and told her that he suspected she was pregnant. He further testified that since Morrison had given his receptionist some money, he wrote her a check for $150.00. (Testimony of B. Morrison, Respondent, Respondent's Exhibit 1)

   
   

3. During the latter part of March 1984, Morrison again went to Respondent's office and told him she wanted an abortion. He told her it would cost $150.00. She then went into a room in the office where she put on a gown, laid on a table and placed her feet in stirrups. Respondent "mashed" on her stomach to see if she was pregnant and then "gave me some kind of shot in my uterus." Respondent told her that he had used a saline solution. Morrison's ex-husband, David W. Morrison, went to Respondent's office while Barbara Morrison was there to loan her $60.00 for the abortion. He gave the money to Respondent's receptionist. He observed Barbara in a back room of Respondent's office, but no one else was there at the time. He later took her home. (Testimony of B. Morrison, D. Morrison)

   
   

4. The injection that Barbara Morrison received from Respondent in March 1984 did not produce any results so she returned to his office about a week later on April 2, 1984. At that time, Respondent followed the same procedures as on the previous occasion and injected a solution into her again. According to Barbara Morrison, "it felt like it went to my heart. It hurt real bad. I asked him what he did and he said nothing. He said to lay down and I would be all right, but my body was swelling up." She was thereafter taken by a companion to the Bay County Medical Center where she received emergency treatment. On the same day, she was transferred to the Gulf Coast Hospital and treated by Dr. Mark A. Wolf, an obstetrician/gynecologist who had treated her for a "spontaneous" abortion in 1983. Upon examination, Dr. Wolf found that Morrison was experiencing lower abdominal pain and was also having some reaction to medication. There was no evidence of infection at the time. Ultrasound studies showed a viable pregnancy in the uterus with some fluid or swelling around the gestational sack. Morrison told him at the time that she had had an

   abortion attempted to be performed on her and that she believed that is what caused some of her problems. Dr. Wolf believed there was a significant risk of infection and admitted her to the hospital. She thereafter started to develop signs of infection and to spontaneously abort her pregnancy. He therefore completed the abortion by a dilation and evacuation of the uterus. (Testimony of B. Morrison, Wolf)

   
   

5. On April 10, 1984, pursuant to an investigation conducted by the Bay County Sheriff's Office, Barbara Morrison returned to Respondent's office with an electronic transmitter concealed on her person that could be monitored by the law enforcement personnel in a nearby vehicle. She told Respondent that she needed another "shot" because the other one hadn't worked. They made an arrangement for her to return on the next day, April 11, for another abortion attempt. Morrison asked Respondent for a receipt for the money that she had paid and he wrote her one. On the following day, she returned, again equipped with a listening device, and went to Respondent's back room, put on a gown, and got on the table. She asked Respondent if he was going to give her a shot like the one he gave her the last time and he said yes. At this point, law enforcement personnel entered the room, observed Morrison sitting on the table with a gown on, and Respondent standing near the foot of the examination table with an instrument tray in his hand. The office was searched pursuant to a search warrant, but no medical records concerning Morrison were found. Respondent was placed under arrest at the time. On April 23, 1984, a departmental investigator, Dwayne Clum, talked to Respondent outside his office and provided him with a release of medical records which had been signed by Barbara Morrison. Respondent informed Clum that he had no medical records on Morrison. Investigator Clum accompanied the Sheriff's personnel when they entered Respondent's office on April 11, and took photographs of the examination table and tray containing various items including a metallic syringe, a vaginal speculum, and a metal cannula. However, there was no fluid in the syringe and the cannula, which can be used as an attachment to a syringe, did not fit the syringe on the tray. (Testimony of B. Morrison, Clum, Robinson, Wolf, Petitioner's Exhibit 5)

   
   

6. On October 29, 1984, Respondent was found guilty of criminal abortion, performing an abortion in an unlawful place, and two counts of practicing medicine without a medical license. Imposition of sentence was withheld and he was placed on probation for a period of five years. The conviction was based on Respondent's activities in connection with Barbara Morrison on April 2 and 11, 1984. He was found not guilty of practicing medicine without a license in connection with his alleged performing of an internal examination of and injecting a solution into the reproductive organs of Morrison on or about March 15, 1984. (Petitioner's Composite Exhibit 7)

   
   

7. Respondent denied at the hearing that he had seen Morrison in March of 1984. He claimed that she had left numerous calls at his house during the latter part of March, but that he had been at a seminar. He admitted that he saw her either on April 1 or 2, 1984, and performed a pelvic examination. He claimed that he had to wash her vagina prior to the examination and that there was pus oozing therefrom with a strong odor, and that he therefore took a large ear syringe and washed out the area with a saline solution. He told her at this time that he was not sure that she was pregnant. He further testified that she came back about a week later demanding to see him and that he told her that he could see her the next day. However, prior to any action on his part on that day, the police entered his office. He denied ever agreeing with her to perform an abortion or injecting anything into her uterus. He explained that the reason he had no medical records on Morrison was because the exams were strictly of an

   emergency nature. Respondent denied receiving any money from Morrison on April 2, 1984, but said that she "threw a five dollar bill" on his desk on April 11. Respondent's testimony in the above respects is not deemed credible and is accordingly rejected. (Testimony of Respondent)

   
   

8. Although the term "obstetrics" normally deals with the outcome of a live birth, the aborting of a fetus or termination of pregnancy can also be included in the definition. Such an invasive procedure involving the injection of a substance into the uterus also might be encompassed within the term "surgery." Termination of a pregnancy constitutes the practice of medicine that only may be performed by a licensed physician or osteopath. (Testimony of Wolf)

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner seeks to take disciplinary action against Respondent pursuant to various grounds for discipline set forth In Chapter 460, Florida Statutes. The pertinent provisions of Chapter 460 that are alleged in the Administrative Complaint are as follows:

   
   

   460.413 Grounds for disciplinary action; action by the board.--

   1. The following acts shall constitute grounds for which the disciplinary action specified in subsection

   2. may be taken:

   * * *

   (n) Failing to keep written chiropractic records justi- fying the course of treatment for the patient, in- cluding, but not limited to, patient histories, examination results, test results, and X rays. X rays need not be retained for more than 4 years.

   * * *

   (q) Prescribing, dispensing, or administering any medicinal drug, performing any surgery, or practicing obstetrics.

   * * *

   (s) Gross or repeated malpractice or the failure 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. The board shall give great weight to the standards for

   malpractice in s.768.45 in interpreting this provision.

   * * *

   (u) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.

   
   

10. As to subsection 460.413(1)(n), Florida Statutes, Petitioner has alleged that Respondent failed to keep written records justifying the course of treatment of the patient Morrison. Respondent admitted that he had no records on the patient, but justified his failure by reason of the fact that he was providing emergency treatment only. There is no statutory exception to the records requirement and, accordingly, it is concluded that grounds for discipline exist under the aforesaid statutory provision.

11. Petitioner alleges that Respondent should be disciplined under subsection 460.413(1)(q), by his attempts on March 15 and April 2, 1984, to terminate the pregnancy of patient Morrison by the inter-uterine injection of a saline or other solution which constituted the performing of surgery or practicing obstetrics. The evidence was sufficient to establish that Respondent performed the alleged procedures on the dates in question and the only remaining issue is whether or not his actions constituted the performance of surgery or the practice of obstetrics. The terms surgery and "obstetrics" are not defined in Chapter 460. However, the issue is susceptible to resolution by reference to common definitions of the terms. "Obstetrics" is "the branch of medicine concerned with the care and treatment of women during pregnancy, childbirth, and the period immediately following." "Surgery" is "the treatment of disease, injury, or deformity by manual or instrumental operations, as the removal of diseased parts or tissue by cutting." Webster's New Twentieth Century Dictionary(1979) It is determined that Respondent's actions with regard to the patient constitute "practicing obstetrics," but not "surgery." Accordingly, grounds for discipline under the statutory provision is warranted.

    
    

12. Petitioner alleges that Respondent should be disciplined under subsection 460.413(1)(s) for his failure to use sterile instruments and solutions in inter-uterine injections into patient Morrision. Such failure is alleged to constitute gross or repeated malpractice or the failure 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. Aside from the fact that Respondent's actions in connection with a patient are not considered to be encompassed within the practice of chiropractic, there was insufficient evidence presented to establish the factual allegations concerning the lack of sterile instruments and solutions.

    
    

13. Petitioner finally alleges that Respondent should be disciplined under subsection 460.413(1)(u) for the procedures he performed on patient Morrison on or about March 15 and April 2, 1984, which were designed or intended to terminate her pregnancy. This is alleged to constitute or offering to practice chiropractic beyond the scope permitted by law or accepting or performing professional responsibilities, which the licensee knows or has reason to know that he is not competent to perform. In view of the fact that it has previously been determined that Respondent practiced obstetrics in connection with his treatment of Morrison, and that such practice is specifically excluded from the authorized activities of a chiropractic physician pursuant to subsection 460.403(3)(c), and by the disciplinary provision alleged, it is concluded that grounds for discipline exist under the above-mentioned statutory provision.

    
    

14. Although Petitioner also alleges that Respondent was charged and found guilty of criminal violations stemming from the incidents involving patient Morrison, the Administrative Complaint does not allege the violation of any specific statutory provision that would warrant discipline in that respect. Accordingly, no separate determination can be made as to this allegation.

    
    

15. After consideration of all the facts and circumstances surrounding the matters presented herein, it is concluded that an appropriate penalty for the established grounds for discipline is suspension of Respondent's license for a period of two years.

RECOMMENDATION

That the Board of Chiropractic issue a final order which suspends the license of Thomas F. Yancey to practice chiropractic for a period of two years, as a result of established violations of subsections 460.413(1)(n), (q) and (u), Florida Statutes.

DONE and ENTERED this 14th day of January, 1986, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 14th day of January, 1986.

COPIES FURNISHED:

Fred Varn Executive Director

Board of Chiropractic

130 North Monroe Street Tallahassee, Florida 32301

Edward C. Hill, Jr., Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Roger D. Patterson, Esquire 17208 W. Hutchinson Road

Panama City Beach, Florida 32407

Docket for Case No: 84-002019

Orders for Case No: 84-002019