STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
CHIROPRACTIC EXAMINERS )
)
Petitioner, )
)
vs. ) CASE NOS. 86-4108
) 87-0167
MICHAEL DAVIS, D.C. )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Order Affirming Consolidation and Granting Continuance executed by the undersigned on March 6th, 1987 and forwarded to the parties herein, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in West Palm Beach, Florida on April 10, 1987. The issue for consideration was whether Respondent's license as a Doctor of Chiropractic in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaints filed herein.
APPEARANCES
Petitioner: Edward H. Reise, Esquire
11173 N. Kendall Drive, Suite F 207 Miami, Florida 33176-0917
Respondent: Michael Davis, pro se
645 South Military Trail No. 9 West Palm Beach, Florida 33415
Erskine C. Rogers, III, Esquire
2875 South Ocean Boulevard, Suite 200 Palm Beach, Florida 33480
BACKGROUND
On October 6, 1986, Fred Roche, then Secretary of the Department of Professional Regulation, on behalf of the Board of Chiropractic Examiners, filed an Administrative Complaint in this case which in three Counts, alleged that Respondent was guilty of several violations of Section 460.4131, Florida Statutes, dealing with the improper practice of chiropractic medicine.
Thereafter, Respondent executed an Election of Rights form in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. On October 21, 1986, the file was forwarded to the Director of the Division of Administrative Hearings for the appointment of a Hearing Officer. On November 14, 1986, the undersigned originally set the hearing for January 26, 1987.
In the meantime, on November 14, 1986, Mr. Roche filed a second Administrative Complaint which in six Counts, alleged additional violations of Section 460.4131 against the Respondent which were denied by him and made the subject of a second request for formal hearing. On January 13, 1987, this second case was forwarded to the Division for appointment of a Hearing Officer and since the undersigned had already been appointed Hearing Officer in the prior filed case, this case was referred to him as well.
The case was originally set for hearing, as was stated
previously, on January 26, 1987. However, on December 30, 1986, Petitioner requested a continuance on the basis of the filing of the second Administrative Complaint and on January 7, 1987, the undersigned granted the continuance postponing the hearing until March 6, 1987. In the meantime, on February 11, 1987, Petitioner moved to consolidate the two cases for hearing and on February 13, 1987, the undersigned granted the motion for consolidation. On February 18, 1987, Respondent moved for a reconsideration of the order granting consolidation and on March 6, 1987, the undersigned entered the order affirming the prior order granting consolidation but granting Respondent's requested continuance of the case until April 10, 1987 at which time the hearing was held.
At the hearing, Petitioner presented the testimony of Harry Brown, an agent with the Palm Beach County Sheriff's Department; Richard B. Kaye, an attorney who previously represented Respondent; Karen D. Moss, a waitress and former patient of Respondent; James H. Ostrander, an airline pilot and close friend of Ms. Moss; Dr. Mehrunissa Sultana, a physician and former associate of Respondent; Dr. Robert S. Butler, a chiropractor; Dr. Steven R. Kastein, a chiropractor and former associate of Respondent; C. Vivian Madison, a massage therapist; Teresa Renee L'Heureux, a secretary and former patient of Respondent; and Thomas G. McAndrews, an investigator with the Department of Professional Regulation. Petitioner introduced Petitioner's Exhibits 1 through 18, which includes the testimony by deposition of Stephanie Johnson, Dr. Robin S. Alden,
and Vivian Madison.
Respondent testified in his own behalf and presented the testimony of Dr.
James E. Brown, a chiropractor; Robert B. Martin, a consultant and designer; Sharon Rita Eidelson, an insurance collector; and Mahadel Mackhanlall, a technician; and introduced Respondent's Exhibits A through K.
Subsequent to the hearing, Mr. Rogers, counsel for Respondent at the hearing, moved to withdraw as counsel from the case. Respondent, in a telephone call to the undersigned just prior to the filing of the motion, indicated he had discharged Mr. Rogers as counsel. Consequently, the motion to withdraw is hereby granted.
Also subsequent to the hearing, the parties submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the allegations contained herein, the Respondent, Michael Davis, was licensed as a Doctor of Chiropractic in Florida.
Respondent treated Karen D. Moss from December 14, 1984 to January 25, 1985 and pursuant to his treatment, maintained certain records of that treatment.
Ms. Moss first met the Respondent when she was
going to massage school. In December, 1984, she was involved in a serious automobile accident and, when she failed to feel better afterwards, was referred to him by a co-worker, Ms. Madison.
When Ms. Moss first went to Dr. Davis, she had already seen another physician for approximately four weeks and was dissatisfied with the treatment rendered by him. At the time of her first visit with Respondent, her right knee was swollen and felt like it needed to be cracked. Her neck could not be turned and her back was always stiff. She had sharp pains in her neck and constant pain in her right shoulder.
Respondent, as a part of his treatment, prescribed massage by Ms. Madison and took one set of x-rays of his patient. He also, in the course of his treatment, used an ultra-sound machine which Ms. Moss could not describe, but even after going to see Respondent for several weeks, three to four times a week, she concluded he was not giving her what she needed and decided to seek yet a third doctor. When she terminated her visits to Dr. Davis, in her opinion, she was not only not improved, but even felt worse. At the time of her last visit with Dr. Davis, on January 25, 1985, she told him she was switching to another physician. At this time, Dr. Davis did not tell her that she had reached maximum medical improvement and recommended, to the contrary, that she continue to come see him.
Ms. Madison, who recalls that several weeks after Ms. Moss began treatment with the Respondent, she left him advising Ms. Madison that she was not getting any better.
When Ms. Moss first visited Dr. Davis, she filled out a form for him listing her complaints and her history as she knew it. She contends that she listed her back, neck, and right leg injury on the form but review of the form she filled out does not reflect any knee injury though constant knee pain is listed. At the time she filled the form out, she was emotionally unstable and merely wanted to get treatment. She was in pain and did not take a lot of time in filling out the form. To this day, two to three years later, though she has improved and credits this improvement to the treatment she received from other physicians, she still suffers from some of the complaints she had when she was a patient of Dr. Davis.
Ms. Moss's records were reviewed by Dr. Robert S. Butler, a chiropractic physician in practice in Miami Shores, who examined them as an expert for the Board of Chiropractic Examiners. In his review, Dr. Butler found no record of a comprehensive medical examination being completed on Ms. Moss or that Dr. Davis took an adequate personal history. The initial examination on December 14, 1984, was not described adequately on any records and the case history form filled out by the patient does not appear to contain any personal entries by the Respondent. His entries appear to include only what appears in the narrative summary produced subsequent to the taking of the history. Any form filled out by a patient should be the basis for the doctor to use to inquire further of the patient in taking a case history. This was not done here by Dr. Davis except very briefly on the first page of the form and it cannot be determined from looking at that who put the entries there. Dr. Butler cannot say, therefore, that the physical examination supposedly accomplished by Dr. Davis was comprehensive as billed to the insurance company by the doctor.
After reviewing the doctor's records on Ms. Moss and cross referencing them with each other, Dr. Butler at first found some of them to be repetitious but on closer examination, it appears that the dates do not coincide. There are also several discrepancies which, in and of itself, is not uncommon. In this case, however, the records are so full of discrepancies as to be beyond the common experience. His review of Respondent's progress notes failed to reveal any specificity. Assuming that the records Dr. Butler looked at were contemporaneous with treatment, they are not adequate for a prudent chiropractic physician's minimum standards and he was unable to determine a proper relationship between the diagnosis done by the Respondent and the billings submitted to the insurance company for services reportedly rendered.
Dr. Butler was also concerned that the narrative report prepared on the computer for the insurance company contains much information not documented elsewhere in the records, such as blood pressure, pelvic findings, and recitations of procedures done. He is also concerned over an indication of weakness on the part of the patient without evidence of muscle testing. This type of record keeping is not customary and is, in his opinion, not good practice. Even Dr. Brown, Respondent's expert, indicated that when he keeps records on his patients, he marks down almost every test result he receives. Admittedly, he does not necessarily put in all negative findings, but very definitely lists all positive findings. He utilizes a sheet of conditions on which he checks off those the existence of which is shown and it is from this form, along with others, that he prepares his narrative summary. He agrees in essence with Dr. Butler that it is not acceptable practice for a physician to write a report to an insurance company indicating that a patient has reached maximum medical improvement when this conclusions is based on matters outside the patient record. Here, Dr. Butler concluded that the records completed on Ms. Moss by the Respondent are sufficient with regard to format but not as to content. He would not put in narrative form matters which are not documented in the backup forms and the evidence here, the records kept by Respondent, reflect many conclusions in the narrative submitted to the insurance company which are not backed up by test results recorded on exam forms. In light of the fact that both experts agree that Respondent's records were inadequate, it is so found.
Dr. Butler examined the records that were furnished to the Department's investigator by Dr. Davis after some substantial reluctance and obfuscation on his part was overcome. In response, Dr. Davis contends that at the time the records were sought of him, he did not produce all of the records he had on Ms. Moss because of the nature and manner in which the subpoena was served and because the subpoena only asked for certain documentation. He contends, however, that he offered his entire file to the investigator, Ms. Pagett, who copied only certain records therefrom indicating that was all she needed. Review of the documentation submitted at the hearing, however, which was all that was submitted by either party, and which was examined by Dr. Butler, leads to the inescapable finding that the records kept by Respondent are minimal at best and appear to fall short of the minimum standards set for the chiropractic profession. Dr. Butler's testimony satisfies the Petitioner's requirement to go forward with the evidence and Respondent has failed to produce any evidence to counter the conclusions drawn by Dr. Butler which are adopted herein as to the sufficiency of the records.
The Administrative Complaint alleges that on February 26, 1985, Respondent filed a report with Ms. Moss's insurance company indicating she had reached maximum medical improvement. Dr. Davis admits this was the case but contends that in his professional judgement, she had in fact reached that status at that time and there was nothing more that he could do for her to increase or
improve her physical condition. Dr. Butler, concluded after evaluation of the records, that maximum medical improvement had not been reached and from the records, he cannot determine what standards the Respondent applied to reach the conclusion that he had. The patient still had symptoms which needed treatment and in light of the injuries sustained by Ms. Moss, the likelihood is slight that she would have reached maximum medical improvement within the six week period that Dr. Davis was treating her. Dr. Butler concedes that a physician has the obligation to report maximum medical improvement status when that status is reached, but here, he feels, the determination was premature. This no more than a professional difference of opinion, however.
Dr. James E. Brown, a chiropractor practicing in Palm Beach Gardens also reviewed the records kept by Respondent on Ms. Moss and as a result of his review concluded differently. He is of the opinion that the Respondent's records on Ms. Moss are adequate and within standards. He feels they would support a conclusion of maximum medical improvement as well. In this regard, Dr. Brown states that the achievement of maximum medical improvement is not based merely on a period of time but on the condition of the patient's body. In the instant case, maximum medical improvement was achieved in a very short time under the Respondent's care. The patient was indicated as being pain free when she left Respondent's care and one does not properly continue to treat patients whose condition is as it was described in Respondent's records. In short, Maximum medical improvement can be reached when a patient is not completely healed and still has a continuing condition. He agrees with Dr. Butler to the effect that definition of the term "maximum medical improvement" is subject to varied interpretations by different physicians and he admits that even if the records show that a patient is pain free, if the patient still has stiffness, continued treatment would be given if there were indications that the patient was still in need of it.
Here, neither Dr. Butler nor Dr. Brown examined Ms. Moss. Both relied solely upon the written records kept by Dr. Davis. Ms. Moss, however, still maintains that when she left Dr. Davis's treatment, she was still in pain and, in fact left, because she felt his treatment was not benefiting her. By itself, that might well mean she had reached maximum medical improvement because the experts both agree that an individual may still have pain but have reached the maximum improvement. However, Ms. Moss also relates that when she went to another doctor who continued to treat her, she did improve rapidly as a result of that treatment and it is found, therefore, that Dr. Davis's report of Maximum medical improvement upon Ms. Moss's leaving his care, was, for whatever reason, premature.
During August, 1985, Dr. Davis also treated Teresa L'Heureux who had been injured in an automobile accident. As a part of the treatment of Ms. L'Heureux, Dr. Davis issued three prescriptions for a drug, Flexoril. The first two, those written on August 30, 1985 and September 20, 1985, were on prescription pads bearing the printed name of Dr. Sultana and the doctor's rubber stamp signature. The third prescription, on October 12, 1985, was a phone-in prescription which does not bear the name of any physician.
Respondent contends that he wrote these prescriptions at the order of Dr. Sultana who had seen the patient prior to the day the prescriptions were issued and directed him to issue them using her prescription pad and a rubber stamp of her signature.
Dr. Sultana, on the other hand, denies ever having seen Ms. L'Heureux as a patient; denies having written the prescriptions; denies having signed her name to them; and denies having authorized Respondent or anyone else to stamp them with her signature. What is more, she does not recall having ever called in the third prescription.
Dr. Sultana admits to having discussed the matter with Detective Brown who was conducting an investigation into the matter and having told him that she does not stamp her prescriptions. She does not recall admitting to Detective Brown that she had a stamp. In fact, she does not have a stamp of her signature, has never used one, and denies ever having told Respondent to utilize a rubber stamp of her signature in writing prescriptions.
Dr. Sultana did some work with the Respondent and served as his mentor in the field of psychiatry. She admits that, as Respondent claims, if it were true that she had called in prescriptions without having seen a patient and were to have allowed Respondent to affix her stamped signature to a prescription for a controlled drug, she could be in severe difficulty with licensing authority. However, she contends she is not denying it for that purpose but because she did not do what Respondent alleges she did, and her testimony, contradicted only by the attacks of the Respondent and his assertion that she did allow him to use her prescription pad as alleged, is accepted.
Further, the note taken from what appears to be patient records bearing her apparent signature and ostensibly relating to Ms. L'Heureux, is an obvious forgery in that the note refers to another patient and has been excised from records improperly with an inaccurate date and name placed thereon. Comparison of the handwritten signature of Dr. Sultana on the note with that on the stamped prescriptions and the computer printout indicates that the signatures are dissimilar. It is concluded, therefore, that the stamp signature is not that of Dr. sultana but a forgery instead.
Dr. Davis is also alleged to have improperly examined Ms. L'Heureux during a visit she made to his office on December 17, 1985 by, in the course of an examination for a bladder infection, placing his fingers in her vaginal area without first donning rubber gloves and by moving his fingers in and out of her vaginal area making sexually suggestive comments to her while doing so. He is also alleged to have provided unnecessary treatment based on his record of diagnosis and treatment of the patient.
Ms. L'Heureux came to see Dr. Davis in October, 1985 after she was involved in a car accident. She had heard his advertisement on the radio and went to see him for relief, During the course of his treatment, he applied heat, electrical muscle stimulation, traction, and adjustments.
Ms. L'Heureux claims that on one occasion during a manipulation, while she was laying on her stomach, Dr. Davis placed his hand in between her legs and told her to move. This made her uncomfortable. On another occasion, when he came back into the room after being absent for a moment, he commented that something smelled good. Neither of these actions is considered actionable, however, absent any further evidence of impropriety.
On one visit, however, she complained to the Respondent of having urinary problems. She had brought the matter to the attention of the Respondent's technician previously and had been advised to provide a urine sample. When the Respondent came into the area where she was waiting, she mentioned it to him and he had her go back into the examining room where he
advised her to take off her pants and examined her. At this time, there was no other female present in the building. During the course of the examination, without using gloves, he pushed with his hands on her lower abdomen and then inserted his fingers inside her. She claims that while doing this he asked her how long it took her to climax and advised her of different ways of climaxing. When he was finished with the examination, he gave her a prescription for flexoril on Dr. Sultana's prescription pad and let her out the door.
Ms. L'Heureux indicates that she had never been to a chiropractor before this series of treatments with Dr. Davis and therefore did not know what was appropriate for him to do. She does know, however, that she never met Dr. Sultana.
During the course of Ms. L'Heureux' treatment, she saw Dr. Davis every day for the first three weeks and then for three weeks thereafter, every other day. Starting with the seventh week, for two months, she saw him every third or fourth day, returning to be treated by him even after the visit during which he conducted the pelvic examination.
She finds it difficult to believe that she saw Dr. Davis for as many times as he billed her for, but she cannot dispute it. Her attorney, when she went to see him referred her to another chiropractor. She continued to visit Dr. Davis even after he did the inappropriate vaginal examination because she had no money and Respondent agreed to wait for her insurance company to pay. He was guiding her with regard to timing and kept telling her not to worry about the fee - that the insurance company would pay - and in fact, he was the one who referred her to an attorney. After she left him to seek the services of another chiropractor, he billed her for a total of $1,996.00 of which the insurance company paid only $600.00. Dr. Davis is suing her for the balance.
Dr. Butler examined Ms. L'Heureux' records as well as those of Ms. Moss. At no place in Ms. L'Heureux', except for the narrative billing sent to the insurance company, is there any mention of testing for a urine problem. No lab reports are contained in the records and as a result, the records are deficient in that regard. The results should be reported to the patient at the next visit unless something is extremely wrong, in which case, the patient should be notified immediately.
Dr. Butler examined those records of Ms. L'Heureux made available to him and was of the opinion that there was nothing in them to justify the diagnosis made by Respondent much less to justify the billings. He did contend, however, that the use of a medical doctor's signature stamp on a prescription pad would be totally improper for a chiropractor and Dr. Davis, who denies the vaginal examination ever took place, stipulates that a vaginal exam, such as alleged herein, would be an inappropriate diagnostic procedure for a chiropractor.
Dr. Davis' reputation regarding his relationship with his patients is somewhat mixed. On the one hand, Ms. Madison, who has known and worked with him for several years, considers him to be a considerate individual who shows concern for his patients who seem to like him. At no time, while she was working for him, did he ever show any sexual interest in any patients and in fact was quite reserved. Others, such as Mr. Mackhanlall, agree. On the other hand, some, like Dr. Kastein, with whom Respondent had a business disagreement, think little of him, his professional capabilities, his ethics, and his personality.
Dr. Davis contends that he interviewed and examined Ms. Moss, as alleged in her testimony but asserts, contra to her statement, that he took a personal history and x-rays of her. He claims he made up a chart as to the type 4of manipulation to be done and on each of the periodic visits she made to his office, made progress notes which, though minimal themselves, served to refresh his memory at the end of each day when he dictated into a computed program log, more extensive progress notes on each of the forty or so patients he saw that day. Most of the information placed into the computer in this fashion was from memory, however, and not from his hand-kept progress notes. This is not a system designed to generate much confidence in either his notes or his credibility.
Respondent also relates that toward the end of January, 1985, Ms. Moss indicated that she had no more dizziness and in fact, felt better though she still had some stiffness. Finally, she came in and told him she was totally free of dizziness and pain and on January 25, 1985, said she was "ok" and feeling fine. A complete examination which he made that day, he claims, showed normal motion. Based on this examination, he concluded that she had reached maximum medical improvement and so indicated to her insurance company.
In March, 1985, he was asked to submit a report to the insurance company which he prepared, based on the computer printout of his daily progress notes. At that time, he had received no information from Dr. Alden, the healer to whom Ms. Moss went after severing her relationship with Respondent, to the effect that she was treating Ms. Moss and no records were requested of him by the insurance company. When the DPR investigator contacted him, he claims he gave her what was requested; no more and no less.
As to Ms. L'Heureux, he relates that when he initially examined her he gave her a complete orthopedic and neurological examination. Based on his diagnosis, he prescribed traction, ultra-sound and x-rays.
Respondent avers that in August, 1985, Ms. L'Heureux indicated she was having pain and wanted to see Dr. Sultana. He apparently set this up because, he claims, shortly thereafter, Ms. L'Heureux indicated she wanted the prescription Dr. Sultana said she would get. He claims he called Dr. Sultana who directed him to give her the prescription for Flexoril using the stamp signature and pad in her desk drawer. The second prescription was also approved by Dr. Sultana according to Respondent, and he continued to treat Ms. L'Heureux until her attorney told her to see an orthopedic surgeon rather than a chiropractor. Dr. Davis categorically denied ever having conducted any vaginal examination of Ms. L'Heureux and claims that on the day in question, after she had deposited the urine specimen for analysis with his technician, she left the building and that was the end of that visit. Dr. Sultana denies ever having given permission to write prescription on her pad and denies having a stamp of her signature.
Having evaluated the testimony of Dr. Davis in this regard, vis a vis the testimony of Ms. L'Heureux, Ms. Moss, and Dr. Sultana, it is clear that Dr. Davis's testimony is the less credible. Evaluating the witnesses and considering the relative probabilities, it is clear that the complainants are the more credible and there is no indication that any of them stands to gain anything by initiating unfounded complaints against him. It is therefore, found that, as to the writing of the prescriptions, Dr. Davis had no authority to write them utilizing Dr. Sultana's pad and a rubber stamp of her signature. As to the alleged incident with Ms. L'Heureux involving the improper pelvic examination, it is found that it did occur as alleged in light of the deposition
testimony of Ms. Johnson, a former patient who indicated Respondent, in May, 1983, conducted a pelvic examination on her without first securing her consent.
Turning, then to the ultimate issue of the sufficiency of the medical records kept on both patients in question here, Dr. Butler is convinced that the records are inadequate. Dr. Brown to a lesser degree agrees. Consequently, it is found that the records have been shown to be inadequate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In Count One of the first Administrative Complaint, Petitioner alleges that Respondent violated Section 460.413(1)(n), Florida Statutes, by failing to keep written chiropractic records justifying the course of treatment of the patient alleged. The testimony of Dr. Butler and, to a lesser degree, that of Dr. Brown contains several examples of the inadequacy of the records Respondent kept regarding the treatment of Ms. Moss. Respondent's records are less than what one would wish for and, for that matter, less than those kept by a majority of practitioners, and are insufficient to justify the course of treatment rendered.
In Count Two of the first Administrative Complaint, the Respondent is alleged to have violated Subsection 460.413(1)(1) by making misleading, deceptive, untrue or fraudulent representations to Ms. Moss' insurance company to the effect that she had reached maximum medical improvement. The evidence shows that the Respondent was treating Ms. Moss for injuries sustained in an automobile accident. She was unsatisfied with the progress she was making and decided to seek treatment from another practitioner. As of that time, Respondent had not given her any indication that he could do no more for her in fact, she was continuing to see him on a routine basis. It was only when she found another practitioner and advised Respondent of that fact and that she would not be returning to see him that he notified the insurance carrier providing the coverage to pay for her treatment that she had reached maximum medical improvement without notifying Ms. Moss, his former patient, of what he had done. This impropriety was compounded by the fact that his action served to deny her any further coverage for treatment. The evidence clearly shows that this was done while Ms. Moss obviously needed continued treatment and Respondent knew this. In light of these circumstances, this allegation is proven. Respondent's actions here also constitute a violation of Section 460.413(1)(j) which lists as grounds for disciplinary action the filing of a report which the licensee knows to be false as is alleged in Count Three of the first complaint.
In Count One of the second complaint, Respondent is again charged with failing to keep written chiropractic records justifying the course of treatment of a patient in violation of Section 460.4l3(1)(n). Here again, Petitioner has established that Respondent's records regarding the treatment of Ms. L'Heureux are so inadequate as to constitute a violation of the statute.
Petitioner also contends in Count Two of the second complaint that Respondent violated Section 460.413(1)(o) by exercising influence on the patient (Ms. L'Heureux) in such a manner as to exploit her for financial gain by overutilization of services. Here again, Petitioner has not satisfied that standard of proof required. No doubt Respondent had Ms. L'Heureux come to his office for treatment on numerous occasions, but the testimony of the experts was
insufficient to establish that these visits were clearly unnecessary and scheduled so as to exploit her for his personal gain.
In Count Three of the second complaint, Petitioner 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, in violation of Section 460.413(1)(s). Dr. Butler was most critical of Respondent's record keeping skills and it appears Respondent was quite liberal in his scheduling of office visits and treatment. As will be seen below, there is some substantial evidence to show that Respondent performed some procedures not within the normal scope of chiropractic practice in prescribing a drug for Ms. L'Heureux he did not have the authority to prescribe and by conducting a vaginal examination of her without the use of a glove or without having a chaperone present. In fact, a vaginal examination, in and of itself, is not a part of chiropractic practice. Taken together, this evidence clearly establishes that Respondent violated the cited provision of the statute and did fail to practice at an acceptable level of skill and care.
Petitioner also charges in Count Four of the second complaint that Respondent violated Section 460.413(1)(u), by practicing beyond the scope permitted by law by issuing a prescription for a medicine or drug. Here, Respondent does not deny that he issued the prescription for Flexoril in question but contends he did so under the authority and direction of Dr. Sultana, a medical doctor with whom he was somehow associated. Having evaluated the evidence on this point and found that Dr. Sultana did not authorize Respondent to issue the prescriptions, it is clear that Respondent issued a prescription which he was not by law (Section 460.403(3)(i)) authorized to issue. Therefore, in doing so, he exceeded the scope of practice permitted to him by law.
This evidence also supports a conclusion that by issuing the prescription utilizing without authority the signature stamp of Dr. Sultana Respondent made an untrue or deceptive representation in the practice of his profession which is a ground for discipline of his license-under the provisions of Section 455.225 and, therefore, also a violation of Section 460.413(1)(1)
Finally, Petitioner has charged Respondent with violating section 460.412, which proscribes sexual misconduct in the practice of chiropractic. Sexual misconduct is defined in the statute as using the physician-patient relationship to induce or attempt to induce a patient to engage in sexual activity outside the scope of generally accepted examination. If established, this would be a violation of section 460.413(1)(w).
Respondent categorically denies having conducted a vaginal examination of Ms. L'Heureux, but considering the testimony of Ms. Johnson to the effect that he also performed a vaginal examination on her, there can be no other reasonable finding but that he did as claimed and when coupled with the comments he made to Ms. L'Heureux, the entire episode cannot be characterized as other than sexual misconduct as alleged.
Having thus concluded that Respondent is guilty of at least several of the offenses alleged, the next step is to arrive at a penalty appropriate to the facts and circumstances involved. while Petitioner has failed to establish all the allegations in the Administrative Complaints filed herein, substantial doubt exists only in that allegation dealing with and exploitation of a patient by unnecessary treatment. The remaining counts, concerning which the evidence is
sufficient, deal with the standard and quality of practice carried cut by the Respondent and his record keeping, and in each case, he has failed even to approach acceptable standards.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that Respondent's license as a chiropractic physician in Florida be revoked and he be fined a total of $8,000.00, but that so much of the penalty as calls for revocation of the license be suspended for two years under such terms and conditions as are prescribed by the Board of Chiropractic Examiners.
RECOMMENDED this 19th day of June, 1987, at Tallahassee, Florida.
ARNOLD H. POLLOCK
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 19th day of June, 1987.
COPIES FURNISHED:
Edward H. Reise, Esquire Suite F 207
11173 N. Kendall Dr. Miami, Florida 33176-0917
Michael Davis, pro se
645 South Military Trail No. 9 West Palm Beach, Florida 33415
Erskine C. Rogers, III, Esquire 2875 South Ocean Blvd., Suite 200 Palm Beach, Florida 33480
Van Poole, Secretary
Department of Professional Regulation
130 North Monroe St. Tallahassee, Florida 32399-0750
Joseph A. Sole, General Counsel Department of Professional Regulation
130 North Monroe St. Tallahassee, Florida 32399-0750
Pat Guilford, Executive Director Department of Professional Regulation Board of Chiropractic
130 North Monroe St. Tallahassee, Florida 32399-0750
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4108
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties hereto:
By the Petitioner
Petitioner's counsel, notwithstanding, the oral comments made by the Hearing Officer at the conclusion of the hearing regarding the format of the Proposed Finding of Fact, failed to number the paragraphs to facilitate identification herein. This has therefore been accomplished by the undersigned. Findings that at all times in issue, Davis licensed as a chiropractor in Florida, Findings of Fact's 1-29 relate to the 2nd Administrative Complaint.
Findings of Fact's 30-46 relate to the first. The remainder go to the issue of the credibility of the Respondent as a witness and relate to both.
Accepted and incorporated herein.
Rejected as immaterial except as to the fact that after leaving Respondent's treatment, the patient was seen and treated by an osteopathic physician.
3-5. Accepted and incorporated herein.
6. Accepted and incorporated herein except for the last two sentences which are irrelevant.
7-9. Accepted and incorporated herein.
10. Rejected as not a Finding of Fact.
11-14. Rejected as not Findings of Fact but mere comment on the evidence.
The ultimate finding that Respondent conducted an examination of S.J. is accepted.
Irrelevant and cumulative.
Rejected as an improper finding of fact. 18-20. Irrelevant.
Rejected as a comment on the evidence and not a finding of fact.
Accepted and incorporated except for the last sentence which is comment on the evidence and not a Finding of Fact.
23-25. Rejected as a summary of the evidence and not a Finding of Fact.
Rejected.
Rejected as a summary of evidence and not a Finding of Fact.
28-29. Rejected as a comment on the quality of the evidence, not a Finding of Fact.
Accepted and incorporated herein.
Accepted except for the last sentence which is a comment on the evidence and not a Finding of Fact.
Accepted and incorporated herein.
Rejected as irrelevant as a Finding of Fact.
34-38. Rejected as a summary of the evidence and not a Finding of Fact. 39-43. Rejected as a summary of the evidence and not a Finding of Fact.
Accepted as to medical justification - Rejected as to nature.
Accepted and incorporated herein.
Rejected as a comment on the evidence and not a Finding of Fact.
47-48. Rejected as irrelevant. 49-50. Cumulative.
51. Rejected.
For the Respondent
Respondent does not identify Findings of Fact. Paragraph numbers start with 6.
7 a. Rejected as a summary of evidence.
Accepted.
Rejected as a summary of the witness's testimony.
9 a. Accepted.
Accepted.
Rejected as a summary of the witness's testimony.
11 a. Accepted.
Rejected as contra to the weight of the evidence.
Rejected as a comment on the evidence.
d-g. Rejected as a summary of the evidence - not a Finding of Fact.
13 a-c. Rejected as a summary of the evidence.
15 a. Rejected as contra to the evidence. b-c. Irrelevant.
17 a. Accepted.
Irrelevant.
No evidence before the Hearing Officer.
Not supported by evidence of record. e-f. Irrelevant.
19 a. Accepted that Sx 3 was a called in prescription.
b. Rejected as comment on the evidence.
c-f. Rejected as a summary of the evidence.
Not proven.
Accepted
21 a-b. Irrelevant
c-e. Rejected as a summary of evidence and not a Finding of Fact.
| Issue Date | Proceedings |
|---|---|
| Jun. 19, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 19, 1988 | Agency Final Order | |
| Jun. 19, 1987 | Recommended Order | Chiropractor's failure to keep appropriate records, misrepresentations, using undue influence on patients and practicing beyond scope and below skill standards is misconduct. |
BOARD OF CHIROPRACTIC vs DOUGLAS N. GRAHAM, 86-004108 (1986)
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE vs MARTIN GROSSMAN, D.C., 86-004108 (1986)
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE vs PAUL KEVIN CHRISTIAN, D.C., 86-004108 (1986)
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE vs GARY BORAKS, D.C., 86-004108 (1986)
BOARD OF CHIROPRACTIC vs STANLEY M. TURNER, 86-004108 (1986)
