Judges: ROBERT E. MEALE
Agency: Department of Health
Latest Update: Dec. 14, 1989
Summary: The issue in this case is whether Respondent is guilty of violating Section 460.413(1)(n), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of one patient.Petitioner failed to prove that records failed to justify the course of treatment.
89-1502STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
CHIROPRACTIC, )
)
Petitioner, )
)
vs. ) CASE NO. 89-1502
)
ALAN M. LEVINE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on August 22, 1989, in Titusville, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Cynthia Gelmine, Staff Attorney
Department of Professional Regulation Northwood Centre
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Jack R. Elliott
Arfken & Elliott
100 Rialto Place, Suite 801 Melbourne, Florida 32901
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent is guilty of violating Section 460.413(1)(n), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of one patient.
PRELIMINARY STATEMENT
By Administrative Complaint filed January 26, 1989, Petitioner alleged that Respondent violated Section 460.413(1)(n), Florida Statutes, by failing to keep written chiropractic records justifying the course of treatment of a patient named D. B. The Administrative Complaint sought an order revoking or suspending Respondent's license, restricting his practice, imposing an administrative fine, issuing a reprimand, placing him on probation, or ordering other appropriate relief.
By Election of Rights dated February 22, 1989, Respondent requested a formal hearing.
At the hearing, Petitioner and Respondent each called two witnesses.
Petitioner offered into evidence five exhibits, and Respondent offered into evidence three exhibits. All exhibits were admitted into evidence.
A transcript was filed on September 12, 1989. Both parties filed proposed recommended orders. Treatment of the proposed findings is set forth in the appendix.
FINDINGS OF FACT
Respondent is a chiropractor licensed to practice in the State of Florida pursuant to license number CH 0003164.
D. B. first visited Respondent on July 10, 1987. She was 36 years old and complained of depression, headaches, numbness, allergies, dizziness, low back pain, neck pain or stiffness, pain between the shoulders, pain or numbness in the shoulders and hands, pain over the heart, itching, frequent urination, earache. The inception of the back and neck pain and headaches, as well as nausea, dated back to an accident almost two years earlier, which followed another accident about a year earlier. Driving, exercise, and stress aggravated these conditions, which interfered with work, sleep, and daily routines. D. B., who was taking pain, muscle-relaxant, and anti-depressant medication, reported that she had not felt really good for almost two years.
During the first visit, Respondent performed a neurological examination. He recorded his findings on D. B.'s chart. He also took x-rays and maintained the exposures among the patient's records. Respondent's diagnosis was that D. B. suffered from subluxation complexes.
Respondent practices subluxation-based chiropractic, which is a well- recognized school within the profession. The primary purpose of the practice is to use chiropractic adjustment techniques to reduce the subluxation complex, which may consist of two or more misaligned vertebrae in the spine. The theory of subluxation practitioners is that the misalignment produces pressure on the spinal cord, which results in symptoms elsewhere in the body.
As the treatment proceeds, the subluxation practitioner monitors the reduction of the complex and any attendant symptoms. However, his primary concern is achieving a biomechanical change in the spinal structure and not symptomatic complaints of the patient.
For example, D. B. showed the symptom of a pelvic deficiency. A pelvic deficiency may manifest itself in a leg that, during clinical examination, is shortened or spongy. Using the Activator, Pierce, and Pierce-Stillwagon techniques, Respondent treated D. B. nine times during July, after the initial visit, then about four times per month through November, 1987, and about eight times thereafter with the final treatment taking place in October, 1988.
Using abbreviations well-recognized among other subluxation practitioners, Respondent recorded the salient details of each office visit during the entire course of treatment. He noted the numeric value for the pelvic deficiency, as measured during each office visit. He recorded the nature and location of the adjustments that he performed upon D. B. during each visit.
The chiropractic records justified the treatment that Respondent administered to D. B., whose symptoms alleviated under his care.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.
Petitioner has jurisdiction over the licensing and disciplining of chiropractic physicians. Section 460.411, Florida Statutes.
Section 460.413(1)(n), Florida Statutes, authorizes disciplinary action for
failing to keep written chiropractic records justifying the course of treatment for the patient including, but not limited to, patient histories, examination results, test results, and X rays.
Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The evidence does not show that Respondent violated the cited statute. He kept chiropractic records that generally justified the course of treatment that he administered to D. B.
RECOMMENDATION
Based on the foregoing, it is
RECOMMENDED that the Board of Chiropractic enter a Final Order dismissing the Administrative Complaint against Respondent.
DONE and ORDERED 14th day of December, 1989, in Tallahassee, Florida.
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1502
Treatment Accorded Proposed Findings of Petitioner 1-2: adopted.
3: rejected as unsupported by the greater weight of the evidence. 4-5: rejected as subordinate.
6-7: rejected as unsupported by the greater weight of the evidence. 8: adopted in substance.
and 11-16: rejected as subordinate.
and 17-18: rejected as unsupported by the greater weight of the evidence.
19-21: rejected as recitation of testimony. Treatent Accorded Proposed Findings of Respondent
1 and 4-7: rejected as not finding of fact. 2-3: adopted.
8-9: rejected as subordinate. 10-15: adopted.
16-18: rejected as subordinate. 19-21: adopted in substance.
22-37: rejected as not finding of fact, recitation or testimony, and subordinate.
COPIES FURNISHED:
Patricia Guilford Executive Director
Board of Chiropractic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
Kenneth E. Easley General Counsel
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Cynthia Gelmine, Staff Attorney Department of Professional Regulation Northwood Centre
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Jack R. Elliott Arfken & Elliott
100 Rialto Place, Suite 801 Melbourne, Florida 32901
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF CHIROPRACTIC
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DOAH CASE NO.: 89-1502
DPR CASE NO.: 102020
ALAN M. LEVINE, D.C.,
Respondent.
/
FINAL ORDER OF THE BOARD OF CHIROPRACTIC
This matter came before the Board of Chiropractic pursuant to Section 120.57(1)(b)(9), Florida Statutes, on April 12, 1990, in Tallahassee, Florida for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner, Department of Professional Regulation, was represented by Cynthia Gelmine, Esquire. Respondent was present and represented by counsel. Neither party filed exceptions to the Recommended Order.
Upon review of the Recommended Order, the arguments, and the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Hearing Officer's findings of fact in paragraphs 1, 2, 3, 6, and 8 are hereby by approved and adopted in toto.
The Board rejects the first sentence of paragraph 4 as not supported by the record, and is irrelevant and immaterial to the proceeding. The Board also rejects paragraph 5 in toto as unsupported by the record and contrary to the Findings of Fact in paragraph 2 of the Recommended Order. The Record is clear regarding the patient's basic complaints as well as the primary reason for seeking chiropractic care. As indicated also in the record progress notes are a standard part of the responsibility of a licensed chiropractic physician in the State of Florida pursuant to Chapter 460, F.S. Chapter 460, F.S. applies consistently to all licensed chiropractic physicians, and one specific group of licensees may not apply Chapter 460, F.S., differently or uniquely to their specific group. The remainder of paragraph 4 is adopted by the Board.
The Board rejects the first sentence of paragraph 7 as unsupported by the record and the law. All practitioners are responsible for the same standard of record keeping pursuant to Chapter 460, F.S. The remainder of paragraph 7 is adopted by the Board.
There is competent, substantial evidence to support the Hearing Officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 460, Florida Statutes.
The Hearing Officer's conclusions of law are hereby approved and adopted in toto.
DISPOSITION
Upon a complete review of the record in this case, the Board determines that the recommendation of the Hearing Officer be adopted.
THEREFORE IT IS ORDERED THAT:
The Board of Chiropractic dismisses the Administrative Complaint against Respondent.
This Order takes effect upon filing with the Clerk of the agency.
THE PARTIES ARE NOTIFIED, pursuant to Section 120.59, Florida Statutes, that they may appeal this Final Order by filing, within thirty (30) days of the filing date of this Order, a notice of appeal with the Clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.
ORDERED this 31st day of July, 1990.
BOARD OF CHIROPRACTIC
Ronald Hoffman, D.C. Acting Chairperson
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this Final Order was provided by U.S. Mail to Jack R. Elliott, Arfken & Elliott, 100 Real Place, Suite 801, Melbourne, Florida 32901; and by hand delivery to Cynthia Gelmine, Esquire, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, this 9th day of August, 1990.
Patricia B. Guilford Executive Director Board of Chiropractic
cc: Ronald E. Meale
=================================================================
CORRECTED AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF CHIROPRACTIC
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DOAH CASE NO.: 89-1502
DPR CASE NO.: 102020
ALAN M. LEVINE, D.C.,
Respondent.
/
CORRECTED FINAL ORDER OF THE BOARD OF CHIROPRACTIC
This matter came before the Board of Chiropractic pursuant to Section 120.57(1)(b)(9), Florida Statutes, on April 12, 1990, in Tallahassee, Florida for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner, Department of Professional Regulation, was represented by Cynthia Gelmine, Esquire. Respondent was present and represented by counsel. Neither party filed exceptions to the Recommended Order.
Upon review of the Recommended Order, the arguments, and the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Hearing Officer's findings of fact in paragraphs 1, 2, 3, 6, and 8 are hereby by approved and adopted in toto.
The Board rejects the first sentence of paragraph 4 as not supported by the record, and is irrelevant and immaterial to the proceeding. The Board also rejects paragraph 5 in toto as unsupported by the record and contrary to the Findings of Fact in paragraph 2 of the Recommended Order. The Record is clear regarding the patient's basic complaints as well as the primary reason for seeking chiropractic care. As indicated also in the record progress notes are a standard part of the responsibility of a licensed chiropractic physician in the State of Florida pursuant to Chapter 460, F.S. Chapter 460, F.S. applies consistently to all licensed chiropractic physicians, and one specific group of licensees may not apply Chapter 460, F.S., differently or uniquely to their specific group. The remainder of paragraph 4 is adopted by the Board.
The Board rejects the first sentence of paragraph 7 as unsupported by the record and the law. All practitioners are responsible for the same standard of record keeping pursuant to Chapter 460, F.S. The remainder of paragraph 7 is adopted by the Board.
There is competent, substantial evidence to support the Hearing Officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 460, Florida Statutes.
The Hearing Officer's conclusions of law are hereby approved and adopted in toto.
DISPOSITION
Upon a complete review of the record in this case, the Board determines that the recommendation of the Hearing Officer be adopted.
THEREFORE IT IS ORDERED THAT:
The Board of Chiropractic dismisses the Administrative Complaint against Respondent.
This Order takes effect upon filing with the Clerk of the agency.
THE PARTIES ARE NOTIFIED, pursuant to Section 120.59, Florida Statutes, that they may appeal this Final Order by filing, within thirty (30) days of the filing date of this Order, a notice of appeal with the Clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.
ORDERED this 16th day of October, 1990.
BOARD OF CHIROPRACTIC
Ronald Hoffman, D. C. Acting Chairperson
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this Final Order was provided by U.S. Mail to Jack R. Elliott, Arfken & Elliott, 100 Real Place, Suite 801, Melbourne, Florida 32901; and by hand delivery to Cynthia Gelmine, Esquire, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, this 23rd day of October, 1990.
Patricia B. Guilford Executive Director Board of Chiropractic
cc: Ronald E. Meale
Docket for Case No: 89-001502
Orders for Case No: 89-001502
| Issue Date |
Document |
Summary |
|
Jul. 31, 1990 |
Agency Final Order
|
|
|
Dec. 14, 1989 |
Recommended Order
|
Petitioner failed to prove that records failed to justify the course of treatment.
|
