STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2203
)
JOSEPH S. MADDOX, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on June 20-21, 1990, at Tampa, Florida.
APPEARANCES
For Petitioner: Elizabeth R. Alsobrook, Esquire
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
For Respondent: Grover Freeman, Esquire
Suite 500, 4600 Cypress Street
Tampa, Florida 33607 STATEMENT OF THE ISSUES
Whether Respondent is guilty of malpractice or failure to practice chiropractic at a level of care, skill and treatment which is recognized by a reasonably prudent chiropiractic physician as being acceptable under similar circumstances, and/or attempting to engage patients in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient.
PRELIMINARY STATEMENT
By Administrative Complaint dated February 21, 1990, the Department of Professional Regulation (DPR), Petitioner, seeks to revoke, suspend or otherwise discipline the license of Joseph S. Maddox, Respondent, as a chiropractic physician. As grounds therefor, it is alleged that in his treatment of patients C.G., K.T., M.W., T.P. and A.M.T., Respondent improperly used a vibrator on these patient's vaginal area, manipulated the clitoris and vaginas of these patients, made improper sexual comments to these patients, and in the treatment of these patients is guilty of malpractice or 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 circumstances.
At the hearing, Petitioner called eight witnesses and two additional witnesses in rebuttal. Respondent called eight witnesses, and 27 exhibits were admitted into evidence. Objection was sustained to the admissibility of the polygraph examination offered by Respondent as Exhibit 28. Respondent also proffered the testimony of the polygraph examiner who conducted the examination after objection to this testimony was sustained. Included in the witnesses called was one expert witness by each party.
Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.
FINDINGS OF FACT
At all times relevant hereto, Joseph S. Maddox was licensed by the Board of Chiropractic to practice chiropractic in Florida. His Florida license number is CH0003204 (Exhibit 10).
C.G. was a patient of Respondent during the period 1984-1988. In 1984, she presented to Respondent with pain in the coccyx. When external manipulation was unsuccessful in restoring the alignment in the tail bone, Respondent performed the adjustment through the vagina. Six months later, another internal coccyx adjustment was made, this time rectally.
Both of these internal adjustments are accepted chiropractic techniques for coccyx realignment, but the rectal procedure is preferred because of fewer layers of tissue between inserted finger and coccyx and proximity to the coccyx.
With respect to C.G., it is alleged that, for the purpose of attempting to engage the patient in sexual activity outside the scope of practice or examination, Respondent manually penetrated C.G.'s vagina, penetrated C.G.'s vagina with a vibrator device, manipulated C.G.'s breasts, asked the patient questions regarding her sex life and activities, and these activities occurred when Respondent was in a closed room with C.G.
In 1986, C.G. had mammo-plasty reduction surgery. Before this surgery, she asked Respondent if the operation would alleviate her back pain. Respondent then examined her breasts and manipulated them. No evidence was presented that Respondent ever suggested having sex with C.B. Following this surgery there was some seepage from the wound, and while undergoing chiropractic treatment by Respondent, C.G. asked him to look at the wound. This is the occasion Respondent is alleged to have manipulated C.G.'s breasts.
On several occasions, Respondent used a vibrator when giving chiropractic treatment to C.G. The vibrator was described by all witnesses as a portable machine with two handles and a rectangular vibrator pad approximately
10 inches by 4 inches. Although the Administrative Complaint alleges Respondent used the vibrator inside the patient's vagina, C.G. testified that during the course of the vibrator treatment Respondent allowed the vibrator to rest on her vaginal area, and he moved the vibrator over the vaginal area. C.G. also testified that Respondent used the vibrator for too long a period which was painful at the time and left her sore after the treatment was over.
Between August 1987 and April 1988, C.G. leased space in Respondent's office facility in which she conducted her mental health counseling. During this period, she became close friends with Sara Chasse' who worked in Respondent's office for some three years before she was dismissed by Respondent.
While occupying space at Respondent's office, C.G. used Respondent's staff to make appointments, answer the phone and perform other clerical services.
C.G. is also an accredited professional astrologer (Exhibit 2) and prepared natal charts for Ms. Chasse' and Respondent's wife.
K.T. first came to Respondent for an adjustment in late 1984. She has gone to chiropractors for thoracic problems dating back to childhood. In fact,
K.T. has worked in a chiropractic setting for some 17 years and had formed her own company, Chiro Girls, to provide trained personnel to be employed by chiropractic clinics.
At her first visit to Respondent's clinic, K.T. discussed with Respondent her ideas of how a chiropractic clinic should be run. K.T. was then employed to conduct a time motion study of the clinic operations and thereafter was employed under contract with Respondent as clinic director. K.T. considered her function at the clinic was to educate and motivate the clinic's staff. Friction developed between K.T. other employees and patients; and the contract was mutually dissolved some eight months later and well short of the year for which the contract was entered into.
K.T. related a long history of menstrual cramps to Respondent which he treated with a vibrator. Respondent also queried K.T. regarding her sex life. Although K.T. deemed such questions inappropriate, a sexual history is appropriate to ascertain when treating female patients presenting symptoms of low back pain and dysmenorrhea (Exhibit 12). Further, use of a vibrator is appropriate when treating trigger points that can greatly intensify dysmenorrhea (Exhibit 13).
Although K.T. testified that Respondent used a small, hand-held vibrator which he moved over her vaginal area and inserted in her vagina to induce her to climax, Respondent emphatically denies this; and nearly all other witnesses testified that the only vibrator used in the clinic was the large vibrator described in Exhibit 6. K.T.'s testimony that the vibrator treatment was very painful is more consistent with the use of the standard vibrator than with a smaller vibrator that could be inserted in a vagina. Accordingly, I find Respondent did not insert a vibrator into K.T.'s vagina.
A.M.T. was treated by Respondent in 1980 when she was 15 years old. Initially she had back problems which were treated by adjustment and spine realignment.
Between June and September 1980, A.M.T. worked in Respondent's clinic part-time. During this period A.M.T. developed coccygeal pain, and realignment of the coccyx was accomplished internally through the rectum. A.M.T. testified that Respondent rubbed her clitoris to relax her and discussed sexual techniques with her. She also testified Respondent's wife was in the treatment room while she was receiving therapy. A.M.T. thought the treatment she received was normal until she came in contact with a social services counselor in 1986 and then decided she had been abused by Respondent.
When school started in September 1980, A.M.T. was unable to work at Respondent's clinic and get to school on time. Her need for treatment ended when she stopped working at the clinic.
Respondent denies he rubbed A.M.T.'s clitoris or engaged in any unethical treatment of A.M.T; however, Respondent testified that he discussed sex with A.M.T. and her boyfriend at the request of A.M.T.'s mother. The mother denies asking for such a consultation with her daughter, and the boyfriend (now husband of A.M.T.) denies ever attending such a meeting. Since this alleged incident occurred approximately 10 years ago it is likely that none of the participants precisely recall what happened, but is more likely that Respondent's version of the sexual conversation with A.M.T. is inaccurate. However, Respondent's and his wife's attempts to justify sexual discussion with
A.M.T. on the totally discredited basis that such discussion was requested by A.M.T.'s mother, leads to the conclusion that these discussions and treatments failed to comply with generally accepted standards of chiropractic treatment.
Respondent treated M.W. with usual Chiropractic techniques for approximately one year for pain associated with muscular skeletal chassis stemming from a work-related back injury. At this time, Respondent's wife, Marty, was enrolled in massage school. After a discussion among the involved parties, it was agreed that Marty would practice massage on M.W. with Respondent present to point out the muscular skeletal anatomy. These treatments took place in Respondent's clinic in the evening well after the clinic had closed and were given at no cost to M.W.
M.W. told Respondent that she experienced pain while having sex with her husband. He suggested vibrator treatment would help in this regard, and
M.W. purchased a vibrator.
M.W. testified that the massage therapy started on her neck and moved down her back and legs while she lay nude on the table. It is undisputed that the last evening M.W. received a massage she was alone in the clinic with Respondent. Marty was delayed and did not get to the clinic, so the massage was started by Respondent. During this massage a hand-held vibrator was used. M.W. testified Respondent moved it over her vaginal area and inserted the vibrator in her vagina. Respondent contends that M.W. requested he so use the vibrator on her. Both indicate that the other was the aggressor. Respondent acknowledged that he became sexually excited and testified M.W. put her hand on his penis.
M.W. testified that Respondent put her hand on the front of his pants, and when he did so she got off the table, dressed and departed, never to return. Respondent testified that when M.W. grabbed him he realized the situation was getting out of hand and he left the room. When he returned, M.W. was dressed and was leaving. Even if Respondent's version of the incident is accepted as true, he voluntarily (if not intentionally) placed himself in an indefensible position and a factual situation that can lead only to the conclusion that he attempted to engage M.W. in sexual activity outside the scope of the practice of chiropractic.
T.P. worked in Respondent's clinic for three months some five years ago and received chiropractic treatment from him. While undergoing activator adjustment the vibrator treatment approached the vaginal area, but T.P. inferred no sexual overtones in the procedure. When treated by Respondent she wore undergarments and considered his treatment similar to the other four or five chiropractors with whom she has worked.
Sara Chasse' was a patient of Respondent for two years before being employed by him in 1984-1985 and again in 1986 until discharged in 1989. During her employment, she also received chiropractic treatment from Respondent. Chasse' was the back office assistant and was supposed to be in the room with Respondent when he was treating female patients. As the back office assistant
she overheard the Respondent ask female patients questions about their sex life. No allegations were made in the Administrative Complaint regarding unprofessional or unethical treatment of Chasse' by Respondent; accordingly, most of her testimony regarding such treatment is irrelevant. Chasse' was a close friend of C.G. and M.W. and knew K.T. and T.P. She discussed with them the treatment they received from Respondent. Chasse' filed a complaint with the Department of Professional Regulation against Respondent and provided a list of patients treated by Respondent which included those who testified in these proceedings.
All of the complaining witnesses testified that Respondent had them stand in front of a full length mirror clad only in bra and panties so he could demonstrate to them the results of the adjustments made during their treatment. They also testified that while they were in the room alone with Respondent the door was closed and sometimes locked. Other witnesses denied the door leading into an examination room was ever locked.
Petitioner's expert witness opined that menstrual cycle problems are best left for treatment by an obstetrician/gynecologist; the use of a vibrator is not appropriate to relieve menstrual cramps; that it is not relevant to chiropractic when female patients last had intercourse; and that using a vibrator over and in the vagina, rubbing patient's clitoris, discussing your own sexual activities with patients, and having patients stand nude before a full length mirror constitutes a failure to practice chiropractic at a level of care, skill and treatment which is recognized by a reasonable prudent chiropractic physician as being acceptable under similar circumstances and/or constitutes an attempt to engage the patient in sexual activity outside the scope or practice or the scope of generally accepted examination or treatment of the patient.
Respondent's expert witness opined that when a female patient presents with low back pain, a reasonable inquiry by the chiropractic physician would be the sexual practices of the patient; that the questions shown in Exhibit 12 are appropriate; and it is appropriate for a chiropractor to treat dysmenorrhea pain, and Exhibit 13 accurately depicts the trigger points; that use of vibrator is appropriate to treat the lower abdominal area of the patient; that there is no fixed standard in the practice of chiropractic whether the door to the examining room is open or closed (but not locked), nor is there a fixed standard of practice regarding the chiropractor having some staff member present when a patient is being examined.
Both expert witnesses agreed that prudence demands the chiropractic physician have a staff member present in the examining room when sensitive area's of the patient are being manipulated and that neither intervaginal massage nor clitoral stimulation is an appropriate chiropractic procedure.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Respondent is here charged with violations of Section 460.413(1)(s) and (w), Florida Statutes, which provide:
(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 -- . . .
(w) Violating any provisions of this Chapter . . .
Section 460.412 defines sexual misconduct to mean
. . . violation of the chiropractic physician- patient relationship through which the chiro- practic physician uses said relationship to induce or attempt to induce the patient to engage, or attempt to engage the patient in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient.
Sexual misconduct in the practice of chiro- practic is prohibited.
The allegations in the Administrative Complaint, if proven, constitute violations of the sections of the statute above-quoted. Here the Petitioner has the burden to prove the allegations by clear and convincing evidence. Feris v. Turlington, 510 So.2d 292 (Fla. 1988).
Many of the witnesses complaining about improper use of the vibrator by Respondent also testified that the vibrator became very painful as its use continued. This is indicative that the Respondent was vibrating a trigger point. Exhibit 14 states that trigger points are painful, either spontaneously or upon pressure, and can cause referred pain to the muscles. Further, trigger points which intensify dysmenorrhea are located in the lower abdomen (Exhibit 13).
With respect to the allegations in Count I of the Administrative Complaint involving C.G., Respondent's questions regarding C.G.'s sexual activities were not improper; the breast examination resulted from C.G.'s request for Respondent to check the seepage following breast reduction surgery; manual penetration of the vagina to realign the coccyx is a standard and acceptable procedure; no credible evidence was presented that Respondent penetrated C.G.'s vagina with a vibrator device; and the fact that during some treatment episodes Respondent was alone in the examination room with C.G., while not a prudent practice to follow, does not reach the status of misconduct in the practice of chiropractic.
With respect to the allegations in Count II of the Administrative Complaint regarding K.T., the questions regarding K.T.'s sexual activity were not improper under the circumstances. Respondent's use of the vibrator to treat K.T.'s menstrual cramps is suspect. Although K.T. testified that the vibrator treatment was very painful, indicating the vibrator was placed on trigger points, she also testified that the tip of the vibrator was placed outside and inside her vagina. Although Respondent denies that he placed the tip of the vibrator in K.T.'s vagina, he acknowledges using the vibrator to treat dysmenorrhea, and K.T.'s version of this particular incident is accepted as accurate.
With respect to the allegations in Count III regarding M.W., Respondent contends the massage treatments to be given to M.W. by his wife were not related to him as a chiropractor. However, M.W. first came to Respondent because he was a chiropractic physician, and the massage M.W. was to receive
would be under the direct supervision of Respondent. Accordingly, I find the evidence that Respondent attempted to induce M.W. to engage in sexual activities with him to be clear and convincing.
With respect to Count IV regarding T.P., no credible evidence was presented to support these allegations. T.P.`s testimony was that nothing untowards happened.
With respect to Count V regarding A.M.T., it is clear that Respondent discussed sex with this patient, and this discussion did not consist of those questions suggested in Exhibit 12 when conducting a physical examination. Respondent's, and his wife's, attempts to justify these sexual discussions as requested by A.M.T.'s mother, were clearly rebutted by the two rebuttal witnesses. A.M.T.'s mother emphatically denied that she had requested Respondent to discuss sex with A.M.T., and A.M.T.'s husband denied he ever attended the sex discussion Respondent contends he had with A.M.T. and her boyfriend. Although Respondent denies that he rubbed A.M.T.'s clitoris while giving her chiropractic treatment, A.M.T. testified that he did so, and her testimony is deemed to be the more credible. She has nothing to gain by her testimony, and she was not part of the cabal organized by Chasse'.
From the foregoing, it is concluded that Respondent is guilty of unprofessional conduct and attempting to engage patients in sexual activities in his treatment of K.T., M.W. and A.M.T. and that he is not guilty of all other charges.
Section 21D-16.003, Florida Administratiye Code, establishes as disciplinary guidelines a range of a minimum of suspension of license for three months followed by six months of probation up to a maximum of revocation of license for violation of Section 460.413(1)(s); and for violation of Section 460.413(1)(w) from a minimum of reprimand up to a maximum of revocation of license. With respect to the allegations regarding A.M.T., it is significant those alleged acts occurred ten years ago. Further, all of these witnesses, except M.W., were former employees of Respondent, and M.W. was a good friend of Chasse'. While this factor does not condone Respondent's improper conduct, it does limit the field of likely victiss. Additionally, all of these women, accept A.M.T., had been to numerous chiropractors and should have been aware of unethical or improper procedures by a chiropractic physician, yet apparently did little to stop these improper activities. Again, that is no excuse for Respondent's actions.
Considering all these factors and the guidelines above noted, the following is submitted.
It is recommended that Joseph S. Maddox be found guilty of Counts II, III and V, and not guilty of all other charges. It is further recommended that his license be suspended for a period of six (6) months, that he pay an administrative fine of $5000 and, upon completion of the suspension, be placed on probation under such terms and conditions as the Board deems appropriate, for a period of two years.
ENTERED this 7th day of August, 1990, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990.
APPENDIX
Proposed findings submitted by the parties are generally accepted. Those not included in H.O.'s findings or not rejected as noted below, were deemed immaterial or unnecessary to the conclusions reached.
Petitioner's Proposed Findings Rejected
10. Rejected.
12. Proposed finding that door was locked is rejected.
15. First sentence rejected as irrelevant to the charges.
21-24. Accepted as the testimony of K.T. insofar as inconsistent with H.O.'s 12, those findings are rejected.
27. Same as 15.
30. Rejected insofar as inconsistent with H.O. #17.
Same as 15.
Rejected as irrelevant.
40-41. Accepted only insofar as consistent with H.O. #20.
58. Rejected as irrelevant.
59-73. Are generally rejected as irrelevant and hearsay, insofar as inconsistent with H.O. #21 and not merely corroborating testimony of other witnesses whose treatments by Respondent were alleged to violate prescribed chiropractic standards.
Respondent's Proposed Findings Rejected
6. Last sentence rejected. Other witnesses testified to use of small hand held vibrators.
First sentence rejected. See H.O. #9.
Rejected. K.T. testified that a small hand held vibrator was used on her the one time she was treated with a vibrator. She also testified that the treatment was very painful which would lead one to believe the large (10"x4") vibrator was used on pressure points.
Rejected insofar as the improper touching of A.M.T.'s vaginal area is concerned.
Rejected insofar as inconsistent with H.O. #16.
Rejected.
Rejected only insofar as it concludes that the uncalled for discussion of sexual techniques with a 15-year old female patient does not constiti1ite an attempt to engage the patient in sexual activity or malpractice.
Last sentence is rejected.
COPIES FURNISHED:
Elizabeth R. Alsobrook, Esquire Department of Professional
Regulation Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
Grover Freeman, Esquire
Suite 500, 4600 Cypress Street
Tampa, FL 33607
Patricia Guilford Executive Director Board of Chiropractic
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
Kenneth D. Easley General Counsel
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF CHIROPRACTIC
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF CHIROPRACTIC,
Petitioner/Appellant,
vs. | DPR CASE NO: | 0100975 |
DOAH CASE NO: | 90-2203 | |
DCA CASE NO: | 90-3842 | |
JOSEPH MADDOX, |
Respondent/Appellee
/
FINAL ORDER
This cause came before the Board of Chiropractic (the "Board") pursuant to Section 120.57(1)(b) 9 and 10, Florida Statutes, on April 11, 1991, in Tallahassee, Florida, for the purpose of considering Petitioner's Motion for Imposition of Conditions upon Stay of Suspension Pending Appeal (copy attached as Exhibit A and incorporated herein by reference) in the above- styled cause. Petitioner, Department of Professional Regulation, was represented by E. Renee Alsobrook and Lisa S. Nelson, Attorneys at Law. Respondent was not present but was represented by John T. Allen, Jr., Attorney at Law.
Upon consideration of Petitioners Motion, the arguments of the parties, and after a complete review of this matter; being otherwise fully advised in the premises, the Board makes the following:
Petitioner's Notion for Imposition of Conditions upon Stay of Suspension Pending Appeal is hereby GRANTED.
The Board hereby imposes the condition upon Dr. Maddox's license to practice chiropractic in that Dr. Maddox must have a female Certified Chiropractic Assistant present in his office and in the examining room at all times when he is treating or examining female patients. The Certified Chiropractic Assistant must be approved by the Board and be supervised by a chiropractic physician other than Dr. Maddox. The supervising chiropractic assistant shall remain in effect pending receipt of the result of the appeal. A back ground check must be made on the certified chiropractic assistant; the Board will not bear any costs in finding the certified chiropractic assistant. Dr. Maddox must obtain the certified chiropractic assistant within thirty days of the date of the hearing.
Accordingly, Dr. Maddox's Petition for Formal Administrative Hearing is hereby DENIED for the reasons set forth in the First District Court of Appeals' Order rendered January 29, 1991. (Attached as Exhibit B and incorporated herein by reference).
THIS ORDER TAKES EFFECT UPON FILING with the Clerk of the agency.
ORDERED this 7st day of May, 1991.
BOARD OF CHIROPRACTIC
Stanley Kaplan
NOTICE OF RIGHT TO JUDICIAL REVIEW UNLESS WAIVED
Pursuant to Section 120.59, Florida Statutes, any person which is substantially affected by this Final Order, may appeal this Final Order, unless right is waived, by filing one copy of the Notice of Appeal with the Clerk of the Department of Professional Regulation, and by filing a filing fee and one copy of the Notice of Appeal with the District Court of Appeal within 30 days of the date this order is filed.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing Order has been forwarded by United States Mail this 7th day of May, 1991 to Edward P. de la Parte, Jr. and David Caldilla, of de la Parte and Gilbert, P.A., 705 East Kennedy Boulevard, P.O. Box 172537, Tampa, Florida 33672-2775 and John T. Allen, Jr., 4508 Central Avenue, St. Petersburg, Florida 33711 and Lisa S. Nelson, Assistant General Counsel, Department of Professional Regulation, Northwood Centre, Suite 60, Tallahassee, Florida 32399-0792
================================================================= PETITIONER'S MOTION FOR IMPOSITION OF CONDITIONS
UPON STAY OF SUSPENSION PENDING APPEAL
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF CHIROPRACTIC
DEPARTMENT OF PROFESSIONAL REGULATION,
Appellant,
vs. DPR Case No. 0100975
DOAH Case No. 90-2203 DCA Case No. 90-3842
JOSEPH MADDOX,
Appellee.
/
PETITIONER'S MOTION FOR IMPOSITION OF CONDITIONS UPON STAY OF SUSPENSION PENDING APPEAL
The Petitioner, Department of Professional, Regulation, by and through its undersigned counsel, files this Motion for Imposition of Conditions Upon Stay of Suspension Pending Appeal, and as grounds therefore would state:
On December 27, 1990, the Board of Chiropractic issued a final order suspending the license of the Respondent. The discipline against Respondents license was predicated upon his sexual misconduct with respect to four patients; in violation of section 460.413(1)(s) and (1), Florida Statutes. A copy of the final order is attached as Exhibit A.
On December 31, 1990, Appellant filed an appeal of the final order and petitioned the First District Court of Appeal for a stay of the final order pursuant to section 120.68(3), Florida Statutes. On that same day, the First District Court granted Appellant a stay pending the resolution of the appeal. A copy of the Court's December 31, 1991 order is attached as Exhibit B.
The Department filed a Response Opposing the Imposition of the stay on December 31, 1990 as well. On January 3, 1991, the First District Court of Appeal issued an order treating the Department's response as a petition to lift the stay. Copies of the Response and the January 3, 1991 order are attached as Exhibits C and D, respectively.
On January 29, 1991,the Court reaffirmed its granting of a stay pending the resolution of the appeal, provided however, that the Board has a right to impose conditions on Joseph Maggots's practice to protect the public during the appeal period. (Exhibit E).
Accordingly, the Department respectfully requests that the Board impose reasonable conditions upon Respondent's practice for the remainder of the appeal period in order to protect the public. The Department recommends that the Board
require Joseph Maddox to have a. female licensee other than his wife present during all examinations of female patients. The Respondent should be required to submit to the Board office and names and license numbers of all employees who will fulfill this requirement.
Respectfully submitted,
Lisa S. Nelson
Assistant General Counsel Florida Bar No. 370657 Department of Professional
Regulation
Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792
(904) 488-0062
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail this 12 day of March 1991, to Edward P. de la Parte Jr. and David Caldevilla, of de la Parte. and Gilbert, P.A., 705 East Kennedy Boulevard, P.O. Box 172537, Tampa, Florida 33672-2775 and John T. Allen, Jr., 4508 Central Avenue St. Petersburg, Florida 33711.
LISA S. NELSON
================================================================= DISTRICT COURT ORDER
=================================================================
DISTRICT COURT OF APPEAL, FIRST DISTRICT
Tallahassee, Fl. 32301
Telephone (904) 488-6151
DATE January 29, 1991
JOSEPH S. MADDOX
Appellant/Petitioner
CASE NO. 90-3842
vs. DOAH CASE NO. 90-2203
DEPARTMENT OF PROFESSIONAL REGULATION
Appellee/Respondent
/
ORDER
Appellee's response filed December 31, 1990, treated as a petition to lift stay, is denied and the order shall be stayed during the pendency of this appeal. This disposition is without prejudice to the agency's right to impose conditions on appellant's practice to protect the public during the appeal period. In the event conditions are imposed and appellant believes them to be unreasonable, he may move this court for review.
By order of the court
JON S. WHEELER, CLERK
I HEREBY CERTIFY that a true and correct copy of the above gas mailed this date to the following: Edward P. de la Parte, David M. Caldevilla, Elizabeth R. Alsobrook, Theresa M. Bender, Grover Freeman, John T. Allen, Jr., Lisa S. Nelson and Sherry Cope.
================================================================= ORDER OF REMAND
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DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF CHIRROPRACTIC
DEPARTMENT OF PROFESSIONAL REGULATION
Petitioner,
vs. DOAH CASE NO. 90-2203
JOSEPH S. MADDOX
Respondent.
/
ORDER OF REMAND
THE BOARD OF CHIROPRACTIC, having received and reviewed the attached opinion from the District Court of Appeal, hereby remands the cause to the Division of Administrative Hearings for a recommended order to be entered consistent with the directions of the court.
DONE AND ORDERED on this 19th day of October, 1992.
DR. DONALD J. HOFFMAN, CHAIR BOARD OF CHIRROPRACTIC
CERTIFICATE OF SERVICES
I HEREBY CERTIFY that the foregoing has been provided by U.S. Mail to David
M. Caldevilla, de la Parte & Gilbert, Post Office Box 172537, Tampa, Florida 33672, and Lisa S. Nelson, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee Florida
=================================================================
RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2203
)
JOSEPH S. MADDOX, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Tampa, Florida on June 21, 1990 before
K. N. Ayers, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: E. Renee Alsobrook, Esquire
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399
For Respondent: Grover C. Freeman, Esquire
Freeman, Lopez & Kelly, P.A. 4600 West Cypress Street Tampa, Florida 33607
Bradley D. Souders, Esquire John T. Allen, P.A.
4508 Central Avenue
St. Petersburg, Florida 33711
David M. Caldevilla, Esquire de la Parte & Gilbert
Post Office Box 172537 Tampa, Florida 33672
STATEMENT OF THE ISSUES
The issue for consideration in this matter is whether the Respondent's license as a chiropractic physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
PRELIMINARY MATTERS
By Administrative Complaint dated February 21, 1990, the Department of Professional Regulation, (Department), on behalf of the Board of Chiropractic Examiners, (Board), sought to discipline Respondent, Joseph S. Maddox' license as a chiropractic physician in Florida alleging, in 5 Counts, that he improperly manipulated the clitoris and vagina of certain named female patients, utilized a vibrator on their vaginal areas, and made improper sexual comments to them.
This was alleged to constitute malpractice or a 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 circumstances, in violation of Section 460.413, Florida Statutes.
Respondent demanded formal hearing and the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.
Thereafter, Hearing Officer K. N. Ayers, to whom the case was assigned, set the matter for hearing in Tampa on June 21, 1990. At the hearing, Petitioner presented the testimony of C.G., K.T., M.W., T.P., and A.M.T., all patients of the Respondent; Joseph J. Callahan, an investigator for the Department; Dr.
Robert Densmore, a chiropractic physician and expert in chiropractic medicine; Thomas K. T., husband of patient A.M.T.; and M.M., her mother. Petitioner also introduced Exhibits 1 - 27.
Respondent testified in his own behalf and presented the testimony of Martha W. Maddox, his wife; Robert Polli, a lawyer; Robert L. Metzgar, a polygraph examiner; Rosemarie Kaufman, an office employee; R.H. and D.W.M., patients of the Respondent; and Dr. Patricia Snair, a chiropractic physician. The report of a polygraphic examination done of Respondent was, over objection of the Petitioner, received into evidence as Exhibit 28.
Subsequent to the hearing, a transcript was provided and both counsel submitted Proposed Findings of fact which were ruled upon by Hearing Officer Ayers in the Appendix to his Recommended Order.
On August 7, 1990, Hearing Officer Ayers submitted to the Board his Recommended Order in which he recommended Respondent be found guilty of Counts II, III and V of the Administrative Complaint only, and not guilty of Counts I and IV; that Respondent's license be suspended for 6 months with 2 years probation thereafter, and that Respondent be assessed an administrative fine of
$5,000.00.
Thereafter, the Board, notwithstanding Hearing Officer Ayers' recommendation for a finding of not guilty as to Counts I and IV, found Respondent guilty of Count I and increased the penalty from that recommended by the Hearing Officer to a suspension of Respondent's license for 2 years followed by 4 years probation and a fine of $8,000.00.
Dr. Mattox appealed this final agency action to the 1st District Court of Appeals which, in its Opinion dated December 23, 1991, reversed the Board's action regarding Count I; vacated the penalty substituted by the Board; and directed remand as to Count II because it found Hearing Officer Ayers' "conclusions" on that Count to be, in actuality, findings of fact which conflicted with his stated Findings of Fact set forth earlier in the Recommended Order. The Court also directed remand as to Counts III and V because the Hearing Officer, it determined, improperly admitted testimony of Sarah Chasse regarding improper conduct by the Respondent not alleged in the Complaint.
The matter thereafter was submitted to the Supreme Court of Florida on jurisdictional briefs, but the Court, on June 11, 1992, denied the Petition for Review.
Thereafter, on October 19, 1992, the Board, acting upon the direction in the Court of Appeals' Opinion, remanded the cause to the Division of Administrative Hearings for the entry of a new Recommended Order consistent with the Court's directions.
Almost immediately, Counsel for Respondent moved to disqualify Hearing Officer Ayers from entering the new Recommended Order upon remand which motion was opposed by Petitioner. Nevertheless, by Order dated November 9, 1992, Hearing Officer Ayers recused himself from further participation in the proceedings and transferred the case to the undersigned who had no prior participation in this matter.
The undersigned read the transcript of the proceedings, specifically excluding so much thereof as constituted the testimony of Ms. Chasse, which was neither read nor considered by the undersigned. Neither proposed Recommended Order submitted by the parties prior to the original Hearing Officer's Recommended Order were included in the matters provided the undersigned.
Petitioner submitted a supplemental Proposed Recommended Order containing Proposed Findings of fact which have been ruled upon independently in the Appendix to this Recommended Order.
On November 12, 1992, Respondent filed a Motion For New Trial in this matter asserting that the undersigned, as newly assigned Hearing Officer, cannot afford the Respondent a fair and impartial hearing relying solely on the transcript of the prior hearing. Thereafter, Petitioner, on November 24, 1992, filed its Petition For Enforcement of Mandate Or In The Alternative, A Petition For Review Of Hearing Officer's Non-Final Order.
A hearing on Respondent's Motion for New Trial was held by telephone conference call on January 15, 1993, attended by counsel for both parties and the undersigned. Also heard at this hearing was Respondent's Motion to Present Additional Necessary Evidence, and by Order dated February 2, 1993, the undersigned denied both of Respondent's motions, affording counsel until February 15, 1993 to file additional argument on the original evidence received at the hearing on the merits in this case. Counsel for Petitioner complied with this Order submitting a Supplemental Recommended Order. Respondent failed to submit any additional Proposed Findings of Fact but, instead, submitted not only argument but additional documents including two affidavits by the Respondent, one by his wife, several reports of no observed misconduct filed with the Board by a registered nurse in the employ of the Respondent, a Motion for Supersedeas Relief filed by Respondent with the First District Court of Appeals, and the Final Order of the Board entered prior to the appeal filed herein. The Final Order is already a part of the case file. The other submittals are contrary to the express rulings of the Hearing Officer and are excluded from consideration in the preparation of this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the allegations contained in the Administrative Complaint, the Board of Chiropractic was the state agency responsible for the licensing of chiropractic physicians and the regulation of
the practice of chiropractic medicine in this state. Respondent, Joseph S. Maddox was licensed as a chiropractic physician in Florida under license No. CH 0003204.
K.T., a 46 year old female, first met Respondent at a seminar they attended at which Respondent employed her as his clinic director. Her duties included educating and motivating the staff and coordinating clinic activities. In addition to be Respondent's employee, she was also his patient and he treated her for thoracic and cervical problems which go back to her childhood.
Having had extensive chiropractic treatment in the past, she was used to a full spine adjustment, but Respondent introduced her to the activator method which utilizes a tool that adjusts one vertebra at a time. She found this to be effective and she received adjustments from Respondent using this treatment approximately once a week. On each occasion, she was alone in the exam room with him and would be wearing a clinical gown. Ordinarily the exam room door was closed by the Respondent, but she requested it be left open a couple of inches. Notwithstanding her request, he felt it necessary to shut the door and did so.
At one point she advised Respondent that she was suffering severe menstrual cramps and he reportedly suggested that he use a vibrator on her to treat them. At first she was laying on her back and it was painful. Then, she claim, he had her get up on all fours, "doggie style", explaining it would be easier, but this, too, was painful. When the treatment started, she was wearing the gown but ultimately she ended up naked, and in each case, only she and the doctor were in the room with the door closed. While these treatments were in progress, she claims the Respondent would encourage her to "let it happen", which she interpreted as meaning he wanted her to climax, believing it would help her menstrual cramps. In the course of utilizing the vibrator, Respondent initially applied it to the outer portion of her vagina, but she asserts, he ultimately would insert the tip of it into her because she would not relax.
In addition to the use of a vibrator, Respondent also used the visualization technique with her in which she was required to stand nude in front of a mirror. This embarrassed her because she was alone in the room with him even though he did not touch her during the technique, other than to point out certain areas which were at different levels. This process only lasted a very brief period of time - perhaps two minutes - sufficient to see the different levels.
Respondent discussed sex with K.T. on several occasions, but it did not embarrass her. Perhaps had she been younger, she claims, it might have. He asked her specific questions about her sex life, and he wanted to know how things were going with her sex life.
A part of K.T.'s duties at Respondent's clinic involved educating the staff and as a result, when Respondent suggested to her that they get three different bone structures in one room, meaning the three female employees who were built somewhat differently, they could undress and examine each other's spine to note the differences. This sounded educational to K.T., and as a result, the three ladies ended up standing in a room in their bras with Respondent present, looking in the mirror at their backs. It was only when Respondent commented regarding the three types of bras they were wearing that she felt the employment situation in that clinic was not to her liking.
Many of the conversations K.T. had with Respondent, while employed by him and as a patient, were what she described as "bullshit" conversations - rambling expostulations on a little of everything. Included in these were the discussions of her sexuality. As she recalls, Respondent treated women for matters related to their sexuality, such as menstrual cramps and the like, and he often discussed these sexual topics in basic conversation with her. She viewed him as a friend and confidant and she somewhat enjoyed their conversations for quite a while. Still, she did not find the session involving the three women as particularly educational and she now realizes that Respondent could have accomplished the same educational purpose through the use of x-rays or with the women draped.
As K.T. sees it now, after 17 years in the chiropractic field, her relationship with Respondent and his actions toward her made her feel she was in way over her head. She claims he stripped her of her dignity and as a result, she will never work in another chiropractic office as an employee. Notwithstanding that, she claims not to be angry with Respondent. She describes him as a knowledgeable doctor who taught her a lot. She holds the chiropractic profession in high esteem, and even Respondent's actions cannot change that.
She remained Respondent's patient for a year after she terminated her employment with him because, as she said, "He's a very good doctor."
K.T. denies any problem in relating to the other employees at the office and claims she was always able to communicate with them and answer their questions. She maintains this in the face of a memorandum she prepared indicating she would no longer answer foolish questions which, she claims, was the result of the Respondent's stating he felt she was spending too much time on questions which he should be answering. Aside from the fact that Mrs. Maddox did not care for K.T. wearing clothing which differentiated her from the other employees, K.T. claims their relationship was acceptable.
K.T. was hired by Respondent for a couple of months in 1984 to do a time and motion study. She would also fill in for doctors when they were out on vacation. There was some preliminary discussions about her coming to work for Respondent and ultimately they agreed upon the terms of a contract under which she became a full time, profit sharing clinic director.
K.T. came to Respondent with a myriad of problems, all of which impacted on her physical condition, including problems with her menstrual cycle, back tension problems, a systemic problem and the like, and chiropractic seemed to moderate those symptoms. When she first approached him about her menstrual problems, he asked her whether she had pain during intercourse as a part of the routine questions asked of patients complaining of this problem, but at no time did he ever ask her any questions other than those which were outlined in the Bates manual, a recognized chiropractic textbook. He asked those questions to get an understanding of whether or not she was consulting a gynecologist and to see what could be done to change her life style to help with the cramps. He also used the Jeanie vibrator in treating her cramps, placing it at the trigger point just above the pubic area. At no time, however, was K.T. ever nude, and at no time, he claims, did he vibrate her internally, nor did he ever ask her any questions about her sexual activities other than those standard questions asked of a woman presenting with menstrual cramping.
As clinical director, K.T. was overpowering. She took control of Respondent and everyone else in the office, and while at first this was a good thing, ultimately her overbearing attitude began to create serious problems for him, with other employees, and sometimes, with patients, as she would override
instructions he gave to other staff members. If a patient were to miss an appointment, K.T. would confront that patient and her attitude was such that often the patients, who were not used to her approach, would not come back. She operated with pressure, and this was not what Respondent wanted in his clinic. K.T.'s attempts to encourage building the business was also good at
first, but ultimately that, too, became a negative factor. Taken together, the evidence does not support a finding that Respondent behaved improperly toward K.T..
A.M.T. , born in 1965, was referred to Respondent in 1980 by her mother for help with back problems. In addition, Respondent hired her to work part time. She was 14 or 15 at the time. At first, Respondent just performed natural adjustments. He would crack her back and adjust her neck, but since she was also having coccyx problems, he also adjusted her through the rectum. She claims, however, that he would massage her vaginally, on the clitoris and internally, to, as he put it, help relieve tension. He never used a vibrator on her personal areas; just his hand, on which at some times he would wear a glove and at other times, nothing. At the time of the first rectal adjustment, Mrs. Maddox was in the room, but not thereafter, and on one occasion, she claims, so was her then boyfriend, now husband. At the time, because she was so young,
A.M.T. presumed Respondent's actions were proper. As she grew older and more experienced, however, she found they were not.
She states Respondent also had her stand nude in front of a mirror to get to know her body. When, at hearing, this was described to her as "visualization technique", she immediately knew to what counsel was referring. This only happened a couple of times, and no one else was in the room when she did it.
Though she professes not to have been sexually active at the time, she claims they discussed ways to manipulate a woman's body in order to stimulate sexual gratification. Respondent allegedly told her that masturbation was normal and healthy and that she should get to know her body and showed her how to give herself breast examinations. He also reportedly told her of some of his sexual experiences with his wife. She never reported any of this to her mother, and it is unlikely it happened. In 1986, when she was having some sexual problems, she went to a United Way agency and spoke with a counsellor there who allegedly advised her she had been molested. Even then, she made no official complaint.
Because work and school were too much for her, she ultimately ended her employment with Respondent and, coincidentally, her adjustments were no longer required. Several years later, in 1986 as a result of a car accident, she went back to the Respondent even after seeing Family Services and supposedly being told she had been molested, and was referred by him to his associate, Dr. Moore to whom she still goes for treatment.
Respondent claims he first saw A.M.T. as a patient in June, 1980, and he employed her to work 2 or 3 times a week around the same time because Mrs. Maddox was working with patients. A.M.T.'s mother, brother, boyfriend and grandmother were all patients of Respondent. He treated her for a mild scoliosis which caused problems with her coccyx and her menstrual cycle. The coccygeal problem was aggravated by the fact she had hit a bump while riding her bicycle, and as a result, she was having considerable distress and difficulty in walking. He treated her only once for that incident.
Before doing anything with her, Dr. Maddox explained to A.M.T.'s mother that he would be inserting his finger into the girl's rectum and pulling on the coccyx, but no vaginal procedure would be done because the mother did not know whether she was sexually active. At the time of the examination, Mrs. Maddox was in the room, and after the coccyx was adjusted, to alleviate some of the trigger point pain, the large headed vibrator was placed on the patient's abdomen. At no time was the vibrator used on her vagina or clitoris.
Respondent also used the vibrator in treating A.M.T.'s low back pain, where it was applied to the gluteal fold area. Respondent cannot recall using the vibrator on A.M.T. very often. He admits, however, that when he was using the vibrator, it is possible his un-gloved hand could have had incidental contact with her vaginal area. It is difficult to work in that area without the potential for contact with the area of the privates, but if it is done in a professional manner, it is taken that way. In any event, A.M.T. made no complaint at the time, and Respondent categorically denies ever having intentionally rubbed her clitoris with or without gloves, or having inserted his fingers into her vaginal canal. To allege it was done a dozen times would be, in Respondent's words, "ludicrous." He also asserts that at any time she was treated for low back pain, the neck, or any other area, Mrs. Maddox was present in the room, and most of the time, her mother and boyfriend were present in the clinic.
Respondent does admit, however, that he had a discussion regarding matters of a sexual nature with A.M.T. She was a patient of his and her mother had requested of Mrs. Maddox that he talk with her because she and her boyfriend had been caught having sex on the rug at their house. He claims that at no time, however, other than at the mother's request, did he ever discuss sexual subjects with A.M.T.. When they did discuss it, he says, they had a general discussion of how far she was going, had she already had sex, should they see someone about it. He asserts they also discussed how easily she could get pregnant, even with the use of a condom, and what might happen, and mutual masturbation, but at no time did Respondent ever discuss any personal sexual experiences of his. A.M.T. continued to see Respondent into 1984 when she returned to his office complaining of neck and low back pains. At that time, he asked her specifically about her periods because of her history of menstrual cramps.
A.M.T.'s mother now denies ever having asked Respondent to speak with her daughter about sexual matters. She now describes her daughter in the most glowing of terms and presents the picture of an almost perfect teen age girl. On balance, the protestations of perfection take away from the credibility of both the mother and the daughter, and Respondent's straightforward description of his actions, which admits to activity which could be misconstrued, out of context, as misconduct, is more plausible. Again, there is insufficient evidence to establish clearly that Respondent's actions with A.M.T. were improper.
M.W., a 28 year old female, was a patient of Respondent for treatment of a work related back injury. During the approximately one year of their relationship, Respondent adjusted her spine and her neck. She was satisfied with his treatment until he began to utilize a vibrator in the area of her vagina. This took place, however, not as a part of a chiropractic adjustment, but during a free massage therapy treatment he performed.
The massage therapy treatments started as a result of Respondent's wife taking massage therapy classes, and Respondent arranged for M.W. to be a subject on whom his wife could practice what she was learning. This was an arrangement beneficial to both. These massage therapy sessions would take place usually rather late on Thursday evenings when no one was in the office except the participants. M.W. paints a lurid picture of the Respondent. She claims that when she arrived for the session, she would undress and lay on the table, and Respondent would apply lotion to her body, starting with the neck and working down to her back and legs. After the massage was complete, he would, she claims, use a vibrator on the area of her vagina. Mrs. Maddox was present for these sessions only twice, she claims. M.W. thought it rather strange that Mrs. Maddox, for whom the massage therapy sessions were to be a practice opportunity, was present so seldom. When she inquired, Respondent always told her that his wife had a late class or could not make it for some other reason. She allowed him to do the massage and use the vibrator on his representation it would help her. However, when, on one occasion, he allegedly pulled her hand up on the front of his pants, in the crotch area, she put an end to it, got up, and left. She was never charged for any of the massage therapy treatments.
M.W. claims Respondent removed the sheet covering her nude body, and in addition to using the vibrator in her vaginal area, also used his hands in there. M.W. had advised Respondent she was having a lot of pain during intercourse with her husband, and Respondent said it would loosen the muscles and help her to relax so she would have no more pain. In fact, she even purchased a vibrator on his recommendation, thinking it would help her problem. At no time, however, did Respondent refer her to a gynecologist for help or treatment.
She also claims Respondent used the visualization technique with her, requiring her to stand naked in front of a mirror to look at her skeletal structure. Whenever he did this, no one else was in the room with them, and the examination room door was closed. Respondent would also touch her breast areas at times during the massage therapy sessions, indicating it would help relieve the pain she would experience when he performed a pelvic exam on her.
M.W. claims not to know A.M.T. or K.T. She professed to be a reluctant witness claiming she did not feel comfortable discussing the subject with anyone other than her husband.
Respondent claims he started treating M.W. sometime in 1985 when she was brought in as a patient by another employee. M.W. had a very "military" neck - totally straight and her entire spine was that way all the way down to the buttocks. This created a tremendous problem with musculo-skeletal pain in the rib cage, the pelvic area, the neck and in the head - all of which were associated with her skeletal problem.
M.W. reported having sexual problems with her husband, a matter which she brought up on many occasions. She was referred to a massage therapist and got considerable benefit from that, but was unable to continue due to her financial situation. Mrs. Maddox, who was taking massage therapy studies at the time, agreed to do massage therapy on M.W. for free as a learning experience.
M.W. was scheduled to come in during the daytime for her sessions with Mrs. Maddox because Mrs. Maddox had children with whom she wanted to spend time in the evenings. However, M.W. was unable to keep daytime appointments because she was unable to find child care at that time. As a result, she specifically asked she be seen at night.
Respondent was present when Mrs. Maddox worked with M.W., not as a supervisor but more to learn what Mrs. Maddox was trying to accomplish through her schooling. M.W. was given massage therapy in the nude by both Mrs. Maddox and Respondent, but none of the chiropractic manipulation was accomplished on
M.W. while she was nude. Only four massage sessions took place, and it appears Mrs. Maddox attended three of them. On the last session, when Mrs. Maddox was not there, M.W. claimed to be in a lot of pain. She had taken the time away from her family to be there, and her husband was baby-sitting. Respondent offered to do some work with muscles on her body and started what he thought was massage to the muscle area.
This went on for approximately 45 minutes with no one else present in the room, and during that time M.W. became sexually aroused. He admits he did as well. At one point during the session, M.W. asked him if he had gotten the vibrator which had been recommended to her by her gynecologist to stretch the tissue around the vulva to help the opening during childbirth, and which he had agreed to purchase for her. When he produced it, he claims she asked him to show her how to use it and he agreed to place it on as well as in her vagina, and did so. At that, she reached out to touch him in the crotch area. When this happened, Respondent claimed to be extremely embarrassed by it. He sat the vibrator down and walked out of the room while M.W. got dressed.
Respondent asserts that while getting to that point in the conversation where M.W. asked for vibration, she carried on a litany of sexually suggestive comments which culminated in this one incident which Respondent considers to be totally outside the area of chiropractic practice. While he admits the misconduct occurred, he claims it was a part of the massage and not a part of his chiropractic practice.
Respondent claims he told his wife about the incident when he got home that evening, asserting he felt rather foolish for letting something like that happen. He denies ever having done anything like that before or since with any other woman.
Dr. Robert D. Densmore is a chiropractic physician practicing in Tampa, and an expert in chiropractic medicine. He does not know Respondent or any of Respondent's patients, but was retained by the Department to review the patient records of several of Respondent's patients pertinent to the issues herein, including K.T., A.M.T. and M.W..
According to Dr. Densmore, there is no such term in chiropractic medicine as adjusting the vagina, and unless there is a specific complaint in the pelvic area, it is not normal for chiropractors to do pelvic examinations of women.
In the event a patient presented to him with a complaint of coccygeal pain, he would first take a written and verbal patient history concerning the onset of the patient's complaint. He would do a basic chiropractic examination, and he would take X-rays to see if, in fact, the coccyx was subluxated or if there were any fractures, bone dysfunction or other pathology associated with the coccyx. If he determined the coccyx was subluxated anterior, normal procedure would be to put it back in place, (adjustment).
There are three different methods that chiropractic colleges teach for that purpose. One involves pinching the skin between the gluteal muscles as the patient is bent over and pulling the skin down and backwards loosening up and pulling it backwards. That is the treatment of choice and sometimes it is quite difficult. The second method is to insert a gloved finger into the patient's rectum and pull the coccyx backward. The third method is through the vagina, but this is not a method of choice. Chiropractic physicians are taught to be very cautious of the patient's privacy and to be aware of any vaginal problems that a female might have. Any vaginal examination would unquestionably be done with a gloved hand. Gloves are used to protect both the physician and the patient.
An adjustment through the vagina would normally not be accomplished by the use of a vibrator inserted internally, nor would the clitoris be stimulated to lubricate the area. Any necessary lubrication would be through the use of a preparation designed for that purpose.
The visualization technique, according to Dr. Densmore, is generally a screening for scoliosis or evaluation of the patient's posture. While scoliosis and postural analysis screenings are taught in chiropractic college, he was never exposed to training in visualization techniques described as such. Among those people with whom he went to school and those with whom he has talked since, no one could relate that specific term, visualization technique, to anything except a posture or scoliosis screening. In the event such a screening is done, the patient is allowed to wear a gown, and in no case would the patient be asked to stand naked in front of a mirror.
Whenever Dr. Densmore examines or treats a female patient, he normally has a female staff member present to make notes and to make the patient comfortable, and to insure against potential problems. The door to the examining room would be shut to keep other people in the building from peeking in.
The encouragement of masturbation or of discussing a patient's sexual activities or methods of sexually pleasing a partner would not normally be an accepted chiropractic practice. If in an examination, it appeared necessary to insert a mechanical devise into a patient's vagina, Dr. Densmore would not do that but would send the patient to a gynecologist. By the same token, if one of his female patients had problems with her menstrual cycle, he would show her how to massage the muscles to relieve cramps, but for anything more, would refer her to a gynecologist. At no time has he ever heard of the use of a vibrator rectally or vaginally to alleviate menstrual cramps, and that would not be, in his opinion, within appropriate standards for chiropractic care. The only time he would do any pelvic examination on a female patient would be for the purpose of taking a pap smear in extremely unusual cases, and he has only done that three times in five years. In his opinion, the chiropractic community as a whole, tends to stay away from pelvic examination or vaginal insertion. In any case, were he to do such an examination, it would be done in a sanitary manner, with the greatest efforts made to protect the privacy of the patient, and in every case, with a female chaperone in the room during the exam.
Dr. Densmore has two types of vibrators which he uses in addition to a table with a vibrator built in. None of these are penile shaped. In substance, the chiropractor is not a gynecologist and should not go beyond a minimal insinuation into a woman's female problem. If it appears she is having difficulty with intercourse or other matters of a female nature, generally not related to the chiropractic area, the appropriate procedure is to refer the patient to a gynecologist or a medical doctor with expertise in that area.
With regard to K.T., M.W. and A.M.T., he considers Respondent's treatment was below community standards and, if repeated, would be gross malpractice. In K.T.'s case, he saw no evidence of any attempt to diagnose the reason for her cramps. As to M.W., he could find nothing in her records to substantiate the need for Respondent's internal manipulation of the patient to help with intercourse. She came in for cervical mid-thoracic pain and Densmore could see nothing to indicate any need for vaginal treatment. In his opinion, Respondent's treatment of her was well below the acceptable standards of care and constituted gross and repeated malpractice. Further, he could see nothing in the records that would require vaginal lubrication of A.M.T. or stimulation to treat a sciatic nerve problem. Certainly, to discuss masturbation with her and the technique of closing her muscles down on a male penis when she started having intercourse would constitute gross and repeated malpractice.
Respondent graduated from the Palmer College of Chiropractic in 1976 after completing his undergraduate degree in medical chemistry at West Georgia College. According to Respondent, Palmer College is one of the most conservative of all the chiropractic colleges in the country and as of the time he graduated, had turned out approximately half the chiropractors in practice in the world.
Respondent has what he would consider a general practice and encourages sports chiropractic, and he is certified as a team physician in sports medicine. He sees what he believes to be a larger than average patient load of between 120 to 135 patients a week, and as of the time of the hearing, had seen approximately 6,500 patients since he began practice. Though he considers himself primarily a sole practitioner, he has employed other chiropractors in his building and in his practice, and over the years, has worked with approximately 80 different chiropractors. He also has two full time employees, and his wife serves as an administrator. One of the employees works in the front office as a receptionist, making appointments, filing insurance claims and accomplishing the various administrative arrangements that must be made. The back office person is involved strictly with examination procedures including preparing the patients for adjustments, explanation of procedures to new patients, taking of basic complaint information and recording nutritional supplements or drugs prescribed. In the past, the back office person has been a certified physician's assistant, but as of the time of hearing, only Respondent's wife was so certified.
Dr. Mattox denies ever having had any malpractice suit filed against him or having been the subject of any prior disciplinary action, nor has he ever been the subject of any prior complaint of impropriety. He has an extensive history of community service including work with such organizations as the Boy Scouts and the United Way, and has also worked with hospitals and provided community health training and has engaged in a significant amount of pro bono work with underprivileged children.
He claims to follow standard protocols in questioning female patients about matters which could be interpreted as being of a sexual nature. In taking the case history, he always asks about sexual function to make sure the patient is under the care of a gynecologist or other medical specialist if some problem is presented. This question is called for in Bates' textbook which was the text used in his Palmer College course in physical diagnosis, and which, he believes, is currently being used. In that regard, he asks sexually active female patients if intercourse is painful and whether they have pain during their menstrual cycle. If both questions are answered in the negative, the matter is dropped.
Dr. Mattox also asserts there is a chiropractic technique which is accepted within the chiropractic community for treating the pain associated with the menstrual cycle. Generally, menstrual cramps are associated with several different conditions and he is satisfied that the use of a vibrator and the vibration technique is an appropriate treatment for that dysmenorrehic condition. The application of the vibrator to the groin area, and manual palpation of that area as well, is an appropriate part of the diagnosis and treatment. In operation, the physician's hand would be placed on the os pubis directly above the vagina at a point where the hip joint can be felt when the leg is moved. Vibration manipulation of that area is considered to be not only competent practice for the treatment of the pain associated with dysmennorheah, but also a standard of practice, and patients can be educated to accomplish it at home. This process is described in a text by Dr. Janet G. Travell, whose work in conjunction with Dr. David G. Simons is well known throughout international physical medicine circles and is considered as being authoritative on the subject in the chiropractic community.
The use of a vibrator device or manipulation is also an accepted standard of care for low back pain. If the patient's history or x-rays reveal indication of abnormality or other problems, when all other causes for the problem have been ruled out, the chiropractor can utilize pressure points to help relieve low back pain. In that case, pressure is often put on the lower abdominal muscle and this process is described in numerous text books, the best of which is one by a group of chiropractic physicians in Europe, known as Manual Medicine, by Dvorak.
Dr. Mattox uses a Jeanie vibrator, a 4 x 10 inch pad vibrator which looks somewhat like a sander and produces deep muscular massage. He also has a vibrator table and another vibrator similar to the Jeanie but manufactured by a different company. On some occasions, he has sold the Jeanie vibrator to patients, but has neither sold nor used any of another type or appearance with one notable exception. Vibrators are recognized as an accepted method of treatment of low back and coccygeal pain within the chiropractic community.
They decrease the facilitation of the nerve and break the pain reflex, and whenever that reflex can be interfered with, it causes the body to recognize the problem and fix it. Primarily, the vibrator is used for an analgesic purpose to numb or desensitize an area. This, too, is recognized in the medical literature.
Turning to the area of breast examination, almost every text on physical examination has defined a protocol for that type of examination, including the Bates text referenced previously. Respondent claims he does not do a breast examination unless the patient has a specific complaint or a history of fibrous problems in the breast. In the accomplishment of a breast examination, however, it is indispensable that the physician examine the breast by looking at it.
Respondent was taught to use the vaginal approach to the adjustment of the coccyx in females, by Maxine McMullen, RN, DC, an instructor in chiropractic at Palmer College. It is considered an acceptable procedure not only in the chiropractic community but also in the osteopathic community, according to Dr. Paul E. Kimberly, a professor in osteopathic medicine.
Martha Maddox, Respondent's wife, has worked with Respondent in his practice intermittently since he opened it in 1972. During the first few years she worked on an almost full time basis, but in the last several years, it has been more part time.
The office had a strict policy regarding the use of a chaperone when a female patient was being examined. That policy called for an assistant to be present in the room with the Doctor at all times when a female patient was in there. The only time she was not present for a massage session with M.W. was the last one, after which Respondent confessed his indiscretions upon arrival home that same night.
Betty Kaufman has worked for the Respondent since May, 1988 and is currently his office manager. At one point she served as a chiropractic assistant for him and during the time she so worked, Respondent had an open door policy with regard to examining rooms. The assistant did not have to knock on the door if it was closed. Mainly the door would be closed when the Doctor was seeing a new patient. Normally, the patients were dressed in a hospital gown and were not nude. The men always wore their undershorts and the women would wear at least panties, if not a bra. At no time during the course of her employment with Respondent has she ever heard a patient complain of the Doctor's professional performance or that he had any inappropriate touching or sexual contact. No one has complained about him asking sexual questions. She admits, however, that at times, when just employees were present, there were jokes or comments of a suggestive nature made in a jesting manner, but never when any patients were present.
R.H. has been a patient and friend of Respondent since 1980. Because of his repeated visits to Respondent's Office, he is familiar with the interpersonal relationships which seemed to exist there during the period in issue, and he has overheard banter of a sexual nature among female staff members but never by Dr. Maddox. The only complaint he ever heard about Respondent was relating to the length of time in the waiting room getting to see him.
On the other hand, C.S., a licensed massage therapist, whose office was located next door to Respondent's was treated by him sometime in 1987 at the time her regular doctor was on vacation. During the visits she had with Respondent at that time, she overheard numerous comments of a sexual nature referring to her body including comments by Respondent regarding the small size of her breasts.
Dr. Patricia Snair graduated from Palmer College of Chiropractic in 1981 and has been practicing since that time. She is licensed in both Florida and North Carolina and has a general practice in Dunedin. She is an examiner for the Department of Professional Regulation and the Board of Chiropractic. She does not know the Respondent.
She is familiar with the type of questions a chiropractor should ask patients in preparation for diagnosis and treatment. Patients who are presenting with low back pain or abdominal problems may be asked the type of activities which give them problems or exacerbate their problems; whether physical activity does it or emotional stress; or other factors, including diet.
If a patient is female, she may ask if the patient is having problems with intercourse or problems after intercourse; whether there are problems with the use of birth control devices; or whether she has problems with her period. All of these areas, which are defined in the Bates book, are area into which a reasonable prudent chiropractor could inquire under appropriate circumstances.
Chiropractic manipulation is an accepted treatment for dysmennoreah. Generally, spinal manipulation is considered as is kinesiology-type muscle testing and treatment and nutritional treatment. Trigger point treatment and massage therapy are also appropriate, and in that regard, the areas to be concentrated on are usually in the low back, abdominal and upper thigh areas. This is in close proximity to the pubic area. In applying trigger point therapy, the vibrator is an appropriate instrument. Ordinarily, however, the appropriate vibrator is a Jeanie pad-type instrument which would be placed directly over the trigger point and moved around within a small area. Penetrating, cylindrical vibrators are not, to her knowledge, used in chiropractic.
A vaginal approach to coccygeal adjustment is one of the accepted treatments for coccygeal pain.
The issue of privacy, that is the open or closed examining room door, is left up to the discretion of the doctor, but generally, in her practice, the door would be closed. By the same token, there is no fixed standard regarding whether a chaperone should be in the room with a female patient and the doctor during chiropractic. So long as the patient has a gown on, Dr. Snair does not feel a chaperone is required. However, if she were going to do a procedure she felt was questionable, then she would have another employee in the room with her. It is a matter of judgement and there is no written ruling on the subject. At no time, however, would she ever lock the door.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Petitioner seeks to discipline the Respondent's license as a chiropractor in Florida because, it alleges, he is guilty of engaging in sexual misconduct with several of his employee/patients in the practice of chiropractic in violation of Section 460.412, Florida Statutes, and, therefore, Section 460.413(1)(s), as well.
Petitioner has the burden to establish the guilt of the Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Clear and convincing evidence must be credible; the facts to which the witnesses testify must be distinctly remembered; and their testimony precise and explicit and without confusion. The evidence must be such that it produces in the mind of the trier of fact, a firm belief or conviction as to the truth of the matters sought to be established. See. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4DCA 1983).
The Administrative Complaint in this case contained five Counts, one relating to five different patients. In his Recommended Order Hearing Officer Ayers found Respondent not guilty of Counts I and IV. In its Final Order, the Board accepted that Finding as to Count IV, but granted Petitioner's exceptions as to Count I and found Respondent guilty of the allegations therein. In its Opinion on appeal, the First District Court of Appeals reversed the finding of Guilty as to Count I and directed remand as to Counts II, III, and V.
Count II relates to K.T. who was employed by Respondent as his clinic director. She claims she was treated by Respondent not only for general spinal adjustment but also for menstrual cramps and in doing so, he inserted a cylindrical vibrator into her vagina while encouraging her to "let it happen." He also allegedly asked her extensive questions about her sex life which she found to be inappropriate. In addition, she claims she was encouraged to participate in a collective spine evaluation with two other female employees during which they were asked by the Respondent to undress and stand in front of a mirror.
While K.T. professed no doubts as to what took place, she showed considerable confusion as to when the events took place and how long they took. She also denies any difficulty in getting along with other employees in the office, but this is clearly not so. The evidence establishes that the witness was overbearing with other employees and with patients and the termination of the association between Respondent and this witness was not totally without rancor. Her testimony is considered to be less than fully credible.
As to M.W., Respondent admits to an inappropriate relationship with this witness in the office one evening when she came in for a massage therapy treatment supposed to be administered by Mrs. Maddox. Regardless of the fact it appears M.W. initiated the contact and solicited the inappropriate behavior, Respondent demonstrated little, if any, self control and failed to demonstrate that degree of professionalism which is expected of an individual in his position. He provided the penile-like vibrator, albeit at M.W.'s request, and utilized it on her in an inappropriate manner, again albeit at her request.
Her request, however, does not excuse or justify his subsequent actions and his participation in this incident is clearly sexual misconduct in violation of the statute.
If A.M.T. is to be believed, Respondent discussed sex with this teenager, massaged her clitoris with his hand, and had her stand naked or nearly so before a mirror to allow her to become familiar with her body. One would think this would seem exceedingly traumatic to a young girl who professed not to be sexually active. Yet she said nothing about it to her mother when it happened, nor, for that matter, to anyone else for six years until she spoke with a counsellor about her sex problems. This seems unlikely. Equally unlikely is the allegation that Respondent would do something improper with his wife present, or would conduct an examination with her boyfriend in the room.
Added to this is the witness' mother's denial that she ever asked Respondent to speak with her daughter about sex. Respondent claims she did because the girl was sexually active which worried the mother. The mother's subsequent impassioned denial of any sexual activity is not credible.
A mere, albeit careful, review of the transcript of the testimony cannot, provide the feel for the case that would be achieved if the author had been present, heard the testimony and observed the demeanor of the witnesses. Yet, running through this entire record seems to be evidence of an almost cabalistic effort on the part of C.G., K.T., and perhaps others, to destroy Respondent's career. To be sure, Respondent's failure to have a chaperone present when adjusting or examining a disrobed female patient shows a gross failure of judgement as does his group visualization session, and his misconduct with M.W. is damaging and may well have long lasting effects on both his professional and personal standing. Nonetheless, Respondent was forthright in his testimony, admitting his indiscretion, and frankly admitting to other actions which, if construed inappropriately, could be considered misconduct.
For example, his asking of sexually explicit questions is fraught with opportunity for misunderstanding, and his examination and palpation of breast tissue without a chaperone are both poorly considered. However, there is significant testimony from other chiropractors, Dr. Densmore and Dr. Snair, that these actions, which may seem obscene or inappropriate in one setting, may well be competent chiropractic practice in another.
When applying the "clear and convincing" evidence test to the allegations here, the inescapable conclusion is that the evidence, as to K.T. and A.M.T., fails to establish Respondent's guilt to that level of proof. Equally as clear is the fact that Respondent's actions with M.W. were inappropriate and constitute sexual misconduct.
Respondent claims, however, that this misconduct was not within the bounds of chiropractic and, therefore, though he was out of line, his misconduct does not constitute grounds for discipline under that statute providing for discipline of chiropractors. This argument is clearly without merit. M.W. came to Respondent initially for chiropractic services. That she was subsequently returning to the office for massage therapy to be administered by Mrs. Maddox does not obscure the fact that while there, Respondent performed the therapy and, in response to M.W.'s complaint regarding sexually related pain, suggested vibrator treatment for that condition which, he repeatedly indicated, was well within the parameters of his treatment. Also, both the massage and the vibrator therapy are within the definition of the practice of chiropractic as found in Section 460.403(3)(a), Florida Statutes.
Rule 21D-16.003(1), F.A.C. contains the Board's guidelines for imposition of punishment in the event a licensee is found to have violated the statute. Even in the case of gross or repeated misconduct, for a first offense, the rule provides for a minimum suspension of license of three months, followed by probation, with provision, if appropriate, other additional sanctions. Here, there is no sustainable evidence of prior, additional, or repeated misconduct.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Respondent's license be suspended for three months, followed by six months of probation.
RECOMMENDED this 6th day of April, 1993, in Tallahassee, Florida.
ARNOLD H. POLLOCK
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 6th day of April, 1993.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2203
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 to this case.
FOR THE PETITIONER:
1. & 2. Accepted and incorporated herein.
3. - 12. Accepted.
13. | & | 14. | Not proven. |
15. | - | 17. | Accepted. |
18. | & | 19. | Accepted but in form stated by counsel, more a |
restatement of testimony. | |||
20. | & | 21. | Restatements of testimony. |
22. | Accepted. | ||
23. | - | 25. | Accepted. |
26. | First sentence accepted. Second sentence | ||
rejected. | |||
27. | & | 28. | Accepted. |
29. | - | 32. | Not proven. |
33. | Accepted. | ||
34. | Accepted. | ||
35. | Accepted as a restatement of testimony. | ||
36. | Accepted as a restatement of testimony. | ||
37. | Rejected. | ||
38. | Rejected as not supported by the evidence. | ||
39. | - | 47. | Accepted. |
48. | Accepted. | ||
49. | & | 50. | Accepted |
51. | Accepted except as relating that the vibrator was | ||
placed inside the vagina. | |||
52. | & | 53. | Accepted but not probative of any material fact. |
54. | & | 55. | Accepted as the opinion of the witness. |
56. | Accepted. | ||
57. | Merely restatement of testimony. | ||
58. | & | 59. | Accepted. |
53. |
FOR THE RESPONDENT:
None Filed.
COPIES FURNISHED:
Nancy Snurkowski, Esquire Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Bradley D. Souders, Esquire John T. Allen, Jr., P.A.
4508 Central Avenue
St. Petersburg, Florida 33711
Jack McRay General Counsel
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Diane Orcutt Executive Director Board of Chiropractic
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF CHIROPRACTIC
DEPARTMENT-OF BUSINESS AND PROFESSIONAL REGULATION,
Petitioner, DBPR CASE NO. 01-00975 DOAH CASE NO. 90-2203
vs. LICENSE NO. CH0003204
JOSEPH S. MADDOX, D.C.,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Chiropractic (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on July 29, 1993, in Ft. Lauderdale, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached) in the case, of Department of Business and Professional Regulation v. Joseph S. Maddox. At the hearing before the Board, Petitioner was represented by Charles Faircloth, Senior Attorney. Respondent appeared before the Board and was represented by John T. Allen, Jr., Attorney at Law and by Connie R. Stephens, Attorney at Law. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following rulings, findings and conclusions:
Several preliminary matters were raised by both parties including motions, responses, exceptions, amendments, objections and corrections to the various pleadings and orders filed in this case. Respondent raised an ore tenus objection at the hearing suggesting that the Board has no jurisdiction to consider or rule on motions related to this case. After hearing the arguments of the parties on this objection the Board overruled the objection and proceeded to consider the various preliminary matters.
The Board determined it appropriate to consider first Petitioner's Motion for Extension of Time to File Exceptions to the Recommended Order and Motion to, Remand the Case to the Hearing Officer for Reconsideration. In that the request for remand, if granted would obviate the need to consider the various other pending matters, the Board heard arguments from the parties on the request for a remand. The Board also received the advice of its own counsel and after due discussion and consideration finds it necessary to reject the Hearing, Officer's Recommended Order as being based upon proceedings that were not in compliance with the essential requirements of law.
Specifically, the Board finds that the opinion of the First District Court of Appeal does not appear to contemplate a new hearing officer upon remand.
See, Maddox v. Department of Professional Regulation, 492 So.2d 717 (Fla. 1st DCA 1991). The Board does not believe that the recusal of the original hearing officer was either necessary or appropriate and does believe that his recusal is in large part the cause of the present status of this case. However, the Board also recognizes that it does not have the authority to require the original hearing officer's participation in the review on remand. Putting that issue aside, the Board finds that the review by the second hearing officer exceeded the scope of the remand from the District Court of Appeal and the Board. The remand was specifically for the purpose of (1) making additional findings of fact as to Count II and making appropriate conclusions of law based on the totality of factual findings with regard to Count II; (2) making new conclusions of law regarding guilt as to Counts III and V based upon the existing record and findings of fact with the exclusion of the testimony of, Sarah Chasse; and (3) recommending appropriate penalties with regard to Counts II, III and V based upon such further consideration. The remand does not require a reversal of the original hearing officer's, findings of fact as to Count II and does not direct a reweighing of the credibility of the witnesses. The second hearing officer failed to comply with the limited scope of the remand. Furthermore, the Board believes that if it is appropriately determined that a second hearing officer must reweigh the credibility of witnesses in compliance with a remand, then it would be necessary to hold a new hearing. See, Section 120.57(1)(b)4., Florida Statutes, and Rathmann v. Pacesetter Industries, Inc., 452 So.2d 1091 (Fla. 4th DCA 1984).1/ The Board found that the second hearing officer erred in reweighing the credibility of the witnesses and finds it to be further error to reweigh the credibility of witnesses without holding new proceedings at which he could view and hear the witnesses while they are examined and cross-examined.
Finally, the Board finds error in the second hearing officer's apparent consideration of a polygraph report and testimony related thereto, in spite of such evidence being found inadmissible in the first proceeding and in spite of the First District Court of Appeals affirmance of that evidentiary ruling by the original hearing officer. See, Maddox v. Department of Professional Regulation)
592 So.2d 717,719 (Fla. 1st DCA 1991). (Recommended Order of the second hearing officer indicates at pages 3 and 4 that the polygraph report and testimony were considered during the second review.)
WHEREFORE, the Board hereby rejects the Recommended Order of the second hearing officer and REMANDS this matter to the Division of Administrative Hearings with the following explicit directions:
This matter should be assigned to a hearing officer other than the second hearing officer and the second hearing officer shall not be involved in this remand. See, Lieberman v. Department of Professional Regulation, Board of Medicine, 573 So.2d 349 (Fla. 5th DCA 1990).
The new hearing officer shall make additional findings as to Count II and recommend appropriate conclusions of law with regard to the guilt of Respondent based on the totality of the findings of fact with regard to Count
II. Reweighing witness credibility should not be necessary.
The new hearing officer shall reconsider the existing record and findings of fact relating to Counts III and V, excluding the testimony of Sarah Chasse, and make recommendations, as to Respondents guilt regarding the charges set forth in these counts. Reweighing witness credibility should not be necessary.
The new hearing officer shall not consider the polygraph report or testimony related thereto that was properly found inadmissible in the first proceeding.
The new hearing officer shall recommend appropriate penalties as to Counts II, III and V.
The new hearing officer shall, as expeditiously as possible, file an Amended Recommended Order, that is in compliance with this remand, for the Board's consideration.
Futhermore, having ordered that this matter be remanded to the Division of Administrative Hearings, the Board finds that each of the other pending matters in this case are now moot, and shall not be ruled upon. Finally, the parties are hereby cautioned that in conjunction with this matter coming back for the Board's consideration after remand, each party is expected to file any exceptions or necessary motions in a timely fashion and that there is no authority for filing multiple sets of exceptions or any responses to exceptions.
This Order of Remand becomes effective upon being filed with the Clerk of the Department of Business and Professional Regulation.
DONE and ORDERED this 13th day of August, 1993.
BOARD OF CHIROPRACTIC
RONALD J. HOFFMAN, D.C. VICE-CHAIRMAN
ENDNOTE
1/ The Board acknowledges the opinion expressed in University Community Hospital v. -Department of Health and Rehabilitative Services, 555 So.2d 922 (Fla. 1st DCA 1990), but distinguishes that Court's holding that a substitute hearing officer has discretion to determine whether a new hearing is necessary, because no issue of witness credibility was involved in that case.
CERTIFICATE OF SERVICE
I HEARBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Joseph S. Maddox c/o John T. Allen, Jr. and Connie R. Stephens, Attorneys at Law, 4508 Central Avenue, St. Petersburg, Florida 33711 and to Ms. Sharyn L. Smith, Director, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee, Parkway, Tallahassee, Florida 32399-1550, and, by hand delivery to Charles Faircloth, Senior Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 19 day of August, 1993.
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DOAH ORDER REOPENING FILE
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF CHIROPRACTIC EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2203
)
JOSEPH MADDOX, )
)
Respondent. )
)
ORDER REOPENING FILE
This case was remanded to the Division of Administrative Hearings by a Final Order entered by the Board of Chiropractic Examiners entered August 13, 1993. Pursuant to the Board's Order to reassign this case to a new Hearing Officer, the case has been reassigned to the undersigned.
The Division of Administrative Hearing's file in this case is REOPENED.
On September 17, 1993, a telephone conference was conducted with the parties. During the telephone conference the Respondent indicated that an appeal of the August 13, 1993 Order has been filed and that the Respondent will file a motion to stay this proceeding pending a resolution of that appeal. The parties were informed that this case would proceed to resolution before the Division of Administrative Hearings absent an order granting the motion to stay.
The undersigned also discussed briefly with the parties the steps which the undersigned believes need to be followed in order to resolve this case. The parties were informed that the undersigned intended to initially make a determination, based a review of Hearing Officer Ayers' Recommended Order and the record in this case, as to whether the undersigned can resolve the counts which have not been yet been resolved without an independent consideration of the evidence. The parties were also informed that they would be given an opportunity to file written argument concerning this initial determination. The parties agreed that argument on this point may be filed on or before the fifteenth date from the date of an order on the motion to stay, if the stay is not granted.
DONE and ORDERED this 20th day of September, 1993, in Tallahassee, Florida.
LARRY J. SARTIN
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 20th day of September, 1993.
COPIES FURNISHED:
Charles Faircloth Senior Attorney
Department of Business and Professional Regulation
Division of Regulation - Legal Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
John T. Allen, Esquire Connie R. Stephens, Esquire 4508 Central Avenue
St. Petersburg, Florida 33711
Grover C. Freeman, Esquire 4600 West Cypress Street Tampa, Florida 33607
David M. Caldevilla, Esquire Post Office Box 172537 Tampa, Florida 33672
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD OF ) CHIROPRACTIC, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2203
)
JOSEPH S. MADDOX, D.C., )
)
Respondent. )
)
AMENDED RECOMMENDED ORDER ON REMAND
By Final Order dated August 13, 1993, Petitioner herein, the Board of Chiropractic, (Board), rejected the Recommended Order of the second hearing officer, (undersigned), and remanded this matter to the Division of Administrative Hearings with "explicit instructions" to assign the matter to a hearing officer "other than the second hearing officer and the second hearing officer shall not be involved in this remand," who shall:
"... make additional findings as to Count II and recommend appropriate conclusions of law with regard to the guilt of Respondent based on the totality of the findings of fact with regards to Count II. Reweighing witness credibility should not be necessary."
"... reconsider the existing record and findings of fact relating to Counts III and IV, excluding the testimony of Sarah Chasse, and make recommendations as to Respondent's guilt regarding the charges set forth in these counts. Reweighing witness credibility should not be necessary."
not consider the polygraph report or testimony related thereto that was properly found inadmissible in the first hearing.
recommend appropriate penalties as to Counts II, III and V, and
file "as expeditiously as possible" an Amended Recommended Order "that is in compliance with this remand, for the Board's consideration."
By way of brief history, the Board, in February, 1990, filed an Administrative Complaint against the Respondent which, in five counts, alleged misconduct on his part while treating patients. A hearing was conducted on the
allegations before Hearing Officer K. N. Ayers, who, on August 7, 1990, submitted his Recommended Order in which he recommended Respondent be found guilty of Counts II, III and V, and not guilty of Counts I and IV. He also recommended a penalty to include license suspension for six months, two years additional probation, and an administrative fine of $5,000.00.
Thereafter, the Board disregarded Hearing Officer Ayers' recommendation as to Count I, finding Respondent guilty of that count as well as of Counts II, III and V. It also increased the penalty to a license suspension for two years, four years additional probation, and an administrative fine of $8,000.00.
Respondent appealed the Board's action to the First District Court of Appeals which, by Opinion dated December 23, 1991, reversed the Board's action regarding Count I, vacated the penalty substituted by the Board, and directed remand as to Counts II, III and V. The remand as to Count II was because the Court found Hearing Officer Ayers' "conclusions" actually to be findings of fact which conflicted with those stated in the Findings of Fact portion of his Recommended Order. The remand as to Counts III and V was based on Ayers' consideration of improperly admitted testimony of Sarah Chasse regarding matters not alleged in the Complaint.
When the Florida Supreme Court denied Petitioner's Petition for Review, the Board remanded to the Division of Administrative Hearings for entry of a new Recommended Order consistent with the District Court's directions. Hearing Officer Ayers then granted Respondent's counsel's request he disqualify himself and the matter was transferred to the undersigned. Now responsible for the preparation of the new Recommended Order, the undersigned read the transcript of the prior hearing on the merits, specifically excluding so much thereof as constituted the testimony of Ms. Chasse, as well as the Supplemental Proposed Recommended Order submitted by Petitioner.
Before the preparation of the new Recommended Order, Respondent filed a Motion For New Trial asserting that the undersigned, who had not heard the witnesses or observed their demeanor while testifying, could not render a fair and impartial recommendation based solely on the transcript of the prior hearing. A telephone conference hearing was thereafter conducted on Respondent's above-cited motion as well as his Motion To Present Additional Necessary Evidence, both of which were denied. Additional evidence submitted by the Respondent, contrary to the express ruling of the undersigned, was also rejected and was not considered in the preparation of the Recommended Order. On April 6, 1993, the undersigned forwarded his Recommended Order to the Board.
In its Final Order, the Board makes much of its contention that the undersigned considered the polygraph report and testimony related thereto, and, apparently, bases it "direction" that the matter be assigned to another hearing officer on that point. The case of Lieberman v.Department of Professional Regulation, 573 So.2d 349 (Fla. 5th DCA 1990), cited by Petitioner in its Final Order, based the requirement for a new hearing officer therein on the fact that the hearing office who heard that case improperly considered polygraph results. That case is distinguishable because the basic fact is that the undersigned did not, at any time, consider the results of the polygraph examination or any testimony relevant thereto. Notwithstanding the allegation in the Final Order that the Recommended Order "indicates at pages 3 and 4" the examination results and testimony were considered during the second review, the second Recommended Order, at the top of page 3, refers to the report and the testimony of the examiner as evidence offered at the initial hearing. It is not mentioned elsewhere in the second Recommended Order. While the undersigned could have,
and no doubt, in restrospect, should have been explicit in indicating neither was considered by him, the placement of reference to the examination and testimony in the second Recommended Order before the reference to Hearing Officer Ayers' Recommended Order should indicate, reasonably, that the reference was to that point in time and not to its consideration in the second Recommended Order. Admittedly, the subsequent paragraphs dealing specifically with evidence excluded, refer only to the testimony of Ms. Chasse.
In fact, however, it is unequivocally represented at this point that neither the polygraph results nor the testimony of the examiner were considered by the undersigned in the preparation of the second Recommended Order.
Consequently, that reason to exclude the undersigned from reconsideration of the case does not exist.
The Board contends the remand to the hearing officer is "specifically for the purposes of (1) making additional findings of fact as to Count II and making appropriate conclusions of law based on the totality of factual findings with regard to Count II; (2) making new conclusions of law regarding guilt as to Counts III and V based on the existing record and findings of fact with the exclusion of the testimony of Sara Chasse; and (3) recommending appropriate penalties with regard to Counts II, III and V based upon such further consideration" without either a reversal of the original hearing officer's findings of fact as to Count II or a reweighing of the credibility of witnesses.
In its Opinion, the Court's remand instructions as regards Count II refer to internal inconsistencies and direct the hearing officer to make "additional findings of fact and draw appropriate conclusions." Perhaps the Court did not envision the original hearing officer disqualifying himself and the appointment of a new hearing officer. What is certain, however, is that the Opinion is silent as to the issue of reweighing witness credibility. It is not required nor is it prohibited.
As to Counts III and V, the Court reversed because of the improper consideration of the testimony of Ms. Chasse pertaining to matters not alleged in the complaint. Again, no reference is made by the Court on any prohibitions against reweighing witness credibility.
While it is clear, as stated by Petitioner in its Final Order, that the Court did not "require a reversal of the original hearing officer's findings of fact as to Count II, and does not direct a reweighing of the credibility of the witnesses," it is equally clear the Court did not prohibit it. The Court directed the Board to remand to the hearing officer for "reconsideration of Counts II, III and V, excluding the improperly admitted testimony." The Court also recognized that "the hearing officer will have to make new recommendations regarding guilt on Counts II, III and V, and regarding the appropriate penalty." (Op. p6) Clearly, this direction envisions a reconsideration of the evidence with an independent evaluation of the credibility of the witnesses.
To follow the Board's direction would require a complete acceptance of Mr. Ayers' Findings of Fact and no more than a rewording of his Conclusions of Law to conform to those facts. This would be a rubber stamp which this hearing officer is unwilling to apply as it would fly in the face of all reason, fairness, and equity, and is contrary to the concept of an independent assessment of the evidence. It is, as well, contra to the Court's instructions.
As to Counts III and V, the sole mandate from the Court was to assess the evidence without consideration of the testimony of Ms. Chasse. To do this requires the undersigned to put himself in the place of Mr. Ayers, and accept Ayers' resolution of all evidentiary issues while excluding the testimony of Ms. Chasse. While Ms. Chasse's testimony was totally excluded from consideration by the undersigned at the time the second Recommended Order was written, uncritical acceptance of the other evidence is impossible. Had Mr. Ayers not disqualified himself, the Court's mandate, as interpreted by the Board, could have been complied with easily. However, for the undersigned, who had no contact with the case prior to assignment to write a new Recommended Order in place of Mr. Ayers, that task is impossible. Without an independent evaluation of the evidence, to include an assessment of its credibility, any result would be devoid of fairness and legally insufficient, especially in light of the Court's recognition of the need to make "new recommendations on guilt."
In its Final Order, the Board acknowledged the opinion of the First District Court of Appeals in University Community Hospital v. Department of Health and Rehabilitative Services, 555 So.2d 922 (Fla. 1st DCA 1990), which allowed a substitute hearing officer to make the determination whether a new hearing is necessary. The Board distinguishes that case from the instant case, however, because that case did not involve an issue of witness credibility.
Further review of the case, however, reveals University to be exactly on point. As the court pointed out, Hearing Officers of the Division of Administrative Hearings have clear statutory authority to exercise their discretion whether to hold a second hearing whether or not an issue of witness credibility exists.
Section 120.57(1)(b)(11), Florida Statutes, provides:
If the hearing officer assigned to a hearing becomes unavailable, the division shall assign another hearing officer who shall use any existing record and receive evidence or argument, if any, which the new hearing officer finds necessary.
With that discretion comes the concomitant discretion to reweigh the credibility of witness testimony.
If, as it appears, the Board disagrees with the Findings of Fact and Recommendations of this hearing officer, it can, by reference to the transcript of the proceedings, demonstrate where those Findings of Fact or Recommendations are not supported by the evidence of record, and change them. This it did regarding the Recommended Order written by Mr. Ayers.
RECOMMENDATION
Based on the foregoing , it is, therefore:
RECOMMENDED that the Board of Chiropractic enter a Final Order in this matter consistent with the Recommendations made by the second hearing officer in the Recommended Order dated April 6, 1993.
RECOMMENDED this 3rd day of June, 1994, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 3rd day of June, 1994.
COPIES FURNISHED:
Jon M. Pellett
Nancy Snurkowski, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Connie R. Stephens, Esquire John T. Allen, Esquire
4508 Central Avenue
St. Petersburg, Florida 33711
Jack McRay
Acting General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Diane Orcutt Executive Director Board of Chiropractic
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
| Issue Date | Proceedings |
|---|---|
| Oct. 26, 1994 | Final Order Approving Settlement Stipulation filed. |
| Aug. 19, 1994 | (Respondent) Notice of Withdrawal of Motion Concerning Attorney Fees and Costs Due to Stipulation of Settlement Entered Into on August 11, 1994 filed. |
| Jul. 15, 1994 | Letter to D. Orcutt from D. Lambert (RE: returning Exhibits) sent out. |
| Jun. 17, 1994 | Respondent`s Statement to Exceptions to Amended Recommended Order filed. |
| Jun. 03, 1994 | Amended Recommended Order on Remand sent out. CASE CLOSED. |
| May 10, 1994 | Petitioner`s Response to Respondent`s May 04, 1994 Motion to Strike filed. |
| May 09, 1994 | Transferring Case sent out. |
| May 09, 1994 | Order Denying Petitioner`s Motion and Argument for a Decision Based on the Record, Denying Motion to Strike Appendix B of Respondent`s Filing of Argument Addressing the Purpose and Nature of the Final [Remand]Order, Denying Motion to Strike Department of |
| May 09, 1994 | (Respondent) Motion to Strike Department of Business and Professional Regulation`s Motion and Argument for a Decision Based on the Record filed. |
| May 05, 1994 | (Respondent/TAGGED) Motion to Strike Department of Business and Professional Regulation`s Motion and Argument for a Decision Based on the Record w/Supporting Attachment filed. |
| Apr. 27, 1994 | (Petitioner) Motion To Strike Appendix B of Respondent`s Filing of Argument Addressing The Purpose and Nature of The Final [Remand] Order filed. |
| Apr. 25, 1994 | Respondent`s Filing of Argument Addressing The Purpose and Nature of The Final (Remand) Order; Appendix To Respondent`s Filing of Argument Addressing The Purpose and Nature of The Final Remand filed. |
| Apr. 25, 1994 | Petitioner`s Motion and Argument for A Decision Based On The Record filed. |
| Apr. 08, 1994 | Order Allowing the Filing of Argument Addressing the Purpose and Nature of this Remand and Granting Motion to Accept Qualified Representative sent out. |
| Apr. 04, 1994 | Respondent`s Response to Hearing Officer`s Order of March 21, 1994 w/cover ltr filed. |
| Mar. 24, 1994 | Petitioner`s Response to Hearing Officer`s Order of March 21, 1994 filed. |
| Mar. 23, 1994 | Petitioner`s Motion to Accept Qualified Representative w/Affidavit filed. |
| Mar. 21, 1994 | Order sent out. (parties to file status by 4-4-94) |
| Mar. 11, 1994 | By Order of the court filed. |
| Mar. 11, 1994 | Letter to LJS from Connie R. Stephens (re: 1st DCA's denial of appeal) filed. |
| Jan. 18, 1994 | Reply to DBPR`s response to Maddox`s Petition for Writ of Certiorari filed. |
| Jan. 06, 1994 | Respondent`s Response to Petitioner`s Motion for Attorney`s Fees filed. |
| Dec. 20, 1993 | (1st DCA) Petitioner`s Motion for Attorney`s Fees w/Exhibits A&B filed. |
| Nov. 30, 1993 | Response to Petitioner`s Motion for stay pending review filed. |
| Nov. 29, 1993 | Copy of cover letter to Jon Wheeler at First DCA from Connie R. Stephens(Appellant/Petitioner`s Petition for Writ of Certiorari: Review of a Non Final Agency Action Under the Florida Administrative Procedure Act: Appendix to Petition for |
| Nov. 24, 1993 | (Petitioner) Notice of Filing Response to Respondent`s Request to Review the Subject Matter Index of the Board of Chiropractic filed. |
| Nov. 15, 1993 | Petitioner`s Motion for Stay Pending Review w/cover ltr filed. |
| Oct. 01, 1993 | Respondent`s Motion for Stay Pending Review filed. |
| Sep. 27, 1993 | Appellant`s response to Appellee`s Motion to dismiss administrative appeal and alternative Motion for application of writ of certiorari and Extension of time filed. |
| Sep. 22, 1993 | Respondent`s Motion for Stay Pending Review filed. |
| Sep. 20, 1993 | Copy of letter to Charles Faircloth from John T. Allen (re; Joseph S. Maddox) filed. |
| Sep. 20, 1993 | Order Reopening File sent out. (case remanded) |
| Sep. 16, 1993 | Notice of Appeal(Agency Appeal) filed. |
| Sep. 08, 1993 | Cover letter with (3 Volumes) transcript`s attached from Charles Faircloth filed. |
| Aug. 23, 1993 | Final Order filed. |
| Apr. 21, 1993 | (Respondent) Amendment to Respondent`s Exceptions to Recommended Order filed. |
| Apr. 19, 1993 | Respondent`s Exceptions to Recommended Order w/Exhibit-A filed. |
| Apr. 06, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 6/21/90. |
| Feb. 17, 1993 | (Petitioner) Motion to Strike Part III and All Exhibits to Respondent`s Filing of Additional Argument filed. |
| Feb. 15, 1993 | Respondent`s Filing of Additional Argument w/Cover ltr filed. |
| Feb. 15, 1993 | Petitioner`s Proposed Supplemental Recommended Order filed. |
| Feb. 02, 1993 | Order Denying Respondent`s Motion for New Hearing and Motion To Present Additional Evidence But Granting Leave To File Additional Proposed Recommended Order sent out. (Motion denied) |
| Feb. 01, 1993 | (Respondent) Reply to Petitioner`s Response Arguing Against Respondent`s Motion for Additional Necessary Evidence and Argument, Motion for New Trial and Memorandum of Law filed. |
| Jan. 29, 1993 | Petitioner`s Response to Respondent`s Motion to Present Additional Necessary Evidence and Argument, Motion for New Trial and Memorandum of Law in Support filed. |
| Jan. 13, 1993 | Respondent`s Notice of Telephonic Hearing filed. |
| Jan. 13, 1993 | Petitioner`s Motion for Continuance of Telephonic Hearing filed. |
| Nov. 24, 1992 | Petition for Enforcement of Mandate or in the Alternative, A Petition for Review of Hearing Officer`s Non-Final Order filed. |
| Nov. 23, 1992 | Order Reopening File sent out. |
| Nov. 16, 1992 | Respondent`s Memorandum of Law in Support of Respondent`s Motion for New Trial; Respondent`s Motion for New Trial filed. |
| Nov. 16, 1992 | Letter to AHP from David M. Caldevilla (re: representation of Respondent) filed. |
| Nov. 09, 1992 | (Petitioner) Response to Respondent`s Motion to Disqualify Hearing Officer filed. |
| Nov. 09, 1992 | Order Granting Motion To Disqualify Hearing Officer sent out. (case is transferred to Hearing Officer Arnold Pollock) |
| Nov. 05, 1992 | Original Transcript and Exhibits; Proposed Recommended Order; First District Court of Appeal`s Opinion; Board of Chiropractic`s Order of Remand filed. (From Lucy Schneider) |
| Nov. 03, 1992 | (Respondents) Motion to Disqualify Hearing Officer w/Exhibit-A filed. |
| Oct. 28, 1992 | CC Motion to Disqualify Hearing Officer w/cover ltr filed. (From Bradley D. Souders) |
| Oct. 20, 1992 | Order of Remand filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 20, 1992 | Remanded from the Agency | |
| May 07, 1991 | Agency Final Order | |
| Aug. 07, 1990 | Recommended Order | Held respondent not guilty of some of the charges of sexual misconduct with patients but guilty of other allegations. |
DEPARTMENT OF HEALTH vs CHARLES LEROY MITZELFELD, D.C., 90-002203 (1990)
BOARD OF CHIROPRACTIC EXAMINERS vs. JOSEPH WAGNER, 90-002203 (1990)
BOARD OF CHIROPRACTIC EXAMINERS vs. IVAN C. ROSS, 90-002203 (1990)
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE vs JAMES HETHER, D.C., 90-002203 (1990)
BOARD OF CHIROPRACTIC EXAMINERS vs. LAWRENCE A. JOHNSON, 90-002203 (1990)
