of Section 460.413(1), Florida Statutes, as set forth in a five-count Administrative Complaint.
At the final hearing in this case, the Petitioner presented the testimony of two witnesses (one a police officer and the other a chiropractic physician) and offered two exhibits, both of which were received in evidence. The Respondent presented the testimony of two witnesses (both chiropractic physicians) and offered two exhibits, both of which were received in evidence.
At the conclusion of the hearing, the parties were allowed the later of ten days from the filing of the transcript or July 17, 1997, within which to file their respective proposed
recommended orders. The transcript was filed with the Division of Administrative Hearings on June 25, 1997. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The proposals of all parties have been carefully considered during the preparation of this Recommended Order.
By way of introduction to the findings of fact which follow, it is noted that there is a great deal of conflict in the testimony of the expert witnesses who testified in this case.
The findings of fact which follow omit a number of the proposed findings submitted by the Petitioner. In each case the omission is either because the proposed finding was not supported by clear and convincing evidence, or because it was contrary to the greater weight of the evidence. The findings of fact which follow also omit a number of the proposed findings submitted by
the Respondent. In each case the omission is either because the proposed finding was not supported by persuasive evidence, or because it consisted of subordinate details not necessary to a disposition of this case.
It is also noted that the expert opinion testimony offered by both parties would have been more helpful if the expert witnesses had given more extensive explanations of the bases for their opinions. In many instances, the expert opinions in this case are accompanied by only cursory statements of the bases for the opinions. Where, as here, there is little to explain the reasons for opinions held by the experts, it is more difficult for the finder of fact to resolve conflicts in the opinions.
The Respondent is a licensed chiropractic physician, having been issued license number CH 0002560. He has been so licensed at all times material to this proceeding.
On or about March 4, 1994, patient L. M. was involved in a motor vehicle accident. On November 7, 1994, patient L. M. presented to the Respondent with the following ten major complaints: frequent headaches, neck pain, black stool, upper- back pain, mid-back pain, lower-back pain, painful feet, bilateral thigh pain, bilateral knee pain, and bilateral calf pain.
The Respondent presented his fee schedule to patient
L. M. and the patient signed a copy of the fee schedule. The fee
schedule stated, among other things, that missed appointments would be charged to the patient.
The patient was a nursing assistant who had been treating herself at home with hot water and Tylenol.
On November 7, 1994, the Respondent took a surgical and medical history, a history of the March 4, 1994, accident, a history of the onset of symptoms, and a history of the home care the patient had been attempting. The Respondent reviewed the nature of the patient's pain and how each area of her body was affected by her activities. The Respondent decided to perform physical, orthopedic, and neurological examinations of the patient. He also decided to obtain x-rays of her pelvis, of the lumbar, dorsal, and cervical areas of her spine, and of both of her knees.
On November 8, 1994, the Respondent saw the patient again, at which time he began an examination of the patient by noting her height and weight, making a structural visual evaluation, checking her motor coordination, performing a cardiovascular examination, measuring her extremities, performing a sensory examination, and checking her reflexes.
On November 8, 1994, the Respondent also took x-rays of the patient and read the x-rays that same day. The x-rays revealed subluxations.
Based on the information he had obtained up to that point, the Respondent elected to commence treatment to the
patient's lumbar spine. On November 8, 1994, he adjusted the patient's lumbar spine and also applied ultra sound and low voltage to the patient's lumbar spine.
Where there are many complaints involving several areas of the patient's body, it is not unusual for a chiropractic physician to begin treatment prior to the completion of the full examination. It is not a deviation from the appropriate standard of care for a chiropractic physician to begin treatment prior to the completion of the full examination under such circumstances. Under the circumstances presented by the patient in this case, it was reasonable for the Respondent to commence treatment to her lower back on November 8, 1994, and to complete the examination the following day.
On November 9, 1994, the Respondent did range of motion measurements and performed various orthopedic tests. He also performed a series of muscle tests.
Based on the information he received on November 7, 8, and 9, 1994, the Respondent developed a treatment plan and treatment goals. His treatment plan called for adjustment to subluxated vertebrae and knees, ultrasound for tissue repair, low voltage muscle stipulation for spasm, traction to decrease intersegmental joint irritation, and acupressure for stimulation of the acupuncture points. He also proposed to brace the knees and the lumbar spine. The Respondent noted in his records that his treatment goals were to stabilize the patient's condition,
increase range of motion, promote tissue repair, decrease spasm, and reduce subluxation.
The Respondent also recorded a treatment frequency plan which provided for daily treatment for the first one or two weeks, followed by three weeks of treatment at a frequency of three times per week. The frequency plan was to be reevaluated at the end of one month.
The Respondent's records provide a reasonable rationale for the services provided to the patient on November 7, 8, and 9, 1994.
The course of treatment of the subject patient consisted of chiropractic adjustments and physiotherapeutic modalities such as low voltage, ultrasound, and traction. Chiropractic adjustment is performed to promote the reduction of subluxations, to increase the healing processes within the body, to increase the normal transmission of nerve impulses, and to reduce spasm. Ultrasound is administered to affect tissue where two dissimilar tissues come together. Low voltage stimulation is designed to relax tissue. All of the treatments administered by the Respondent were designed to meet the treatment goals he had previously established. Such treatments were consistent with a therapeutic outcome. The Respondent's course of treatment was appropriate for the various complaints and symptoms presented by the subject patient.
The x-rays taken by the Respondent were appropriate under the circumstances presented by the subject patient. Justification for those x-rays is contained in the patient records.
On December 16, 1994, the patient was involved in a second motor vehicle accident. The Respondent's records contain a history regarding the second accident. The Respondent obtained a copy of the accident report regarding the second accident. He also obtained x-ray reports from the hospital to which the patient was taken after the second accident. The Respondent noted in the patient records that he was going to continue with the same course of treatment following the second accident. That was a reasonable course of action under the circumstances of this case.
Following the second motor vehicle accident, the Respondent concluded there was reason to suspect that the patient had a herniated disc. This conclusion was based on the chronicity of the patient and the acuteness of her problems. Accordingly, the Respondent ordered an MRI.
The Respondent's patient records document a reasonable basis for the tests he ordered for the patient. The testing was reasonably calculated to assist in arriving at a diagnosis and treatment plan for the patient.
The Respondent's patient records are legible in all material details. The few instances of illegible words do not
materially affect an understanding of what is written in the records. The Respondent's patient records are sufficient to meet the record-keeping requirements of the rules that were in effect at the time the records were created.
On or about November 7, 1994, the Respondent billed the patient's insurance company for a detailed one-hour consultation. On or about November 8, 1994, the Respondent billed the patient's insurance company for a half-hour consultation, a spinal adjustment, and two therapeutic modalities. On or about
November 8, 1994, the Respondent also billed the patient's insurance company for skull, neck, thoracic, lumbar, left and right knee, and pelvic x-rays. On or about November 9, 1994, the Respondent billed the patient's insurance company for completion of the detailed physical, orthopedic, and neurological examination. Each time the patient visited the Respondent's office, the Respondent billed for an office visit. On numerous occasions, the Respondent billed the patient's insurance company for an office visit and for manipulations on the same day. On or about December 6, 1994, the Respondent billed the patient's insurance company for an office visit and for a re-examination.
On or about January 3, 1995, the Respondent billed the patient's insurance company for an intermediate office visit and a consultation. On or about January 18, 1995, the Respondent billed the patient's insurance company for multiple vertebral segment manipulations. The Respondent has his own unique billing
system in place. He does not use the current procedural terminology codes that are generally used by other chiropractic physicians in their billing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Section 460.413(6), Florida Statutes (1997), and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983):
We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
See also Smith v. Department of Health and Rehabilitative Services,
522 So. 2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above-quoted language from Slomowitz. The Smith case also includes the following at page 958:
"Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970).
Section 460.413(1), Florida Statutes, reads as follows, in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
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Failing to perform any statutory or legal obligation placed upon a licensed chiropractic physician.
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Failing to keep written chiropractic records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, X rays, and diagnosis of a disease, condition, or injury. X rays need not be retained for more than 4 years.
Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include, but not be limited to, the promotion or sale of services, goods or appliances, or drugs.
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(r) Gross or repeated malpractice or the failure to practice chiropractic at a level of care, skill, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the standards for malpractice in s. 766.102 in interpreting this provision. A recommended order by a hearing officer, or a final order of the board finding a violation under this section shall specify whether the licensee was found to have committed "gross malpractice," "repeated malpractice," or "failure to practice chiropractic medicine with that level of care, skill, and treatment
which is recognized as being acceptable under similar conditions and circumstances" or any combination thereof, and any publication by the board shall so specify.
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(v) Violating any provision of this chapter, any rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
Section 460.413(2), Florida Statutes (1993), reads as follows:
When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
Refusal to certify to the department an application for licensure.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the chiropractic physician on probation for a period of time and subject to such conditions as the board may specify, including requiring the chiropractic physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another chiropractic physician.
Count I of the Administrative Complaint charges that the Respondent "has violated Section 460.413(1)(i), Florida Statutes, by failing to perform a statutory or legal obligation of a licensed chiropractic physician by performing, ordering, administering, or procuring unnecessary diagnostic testing in
violation of Section 766.111, Florida Statutes." Section 766.111, Florida Statutes, reads as follows, in pertinent part:
No health care provider licensed pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466 shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient's condition.
A violation of this section shall be grounds for disciplinary action pursuant to s. 458.331, s. 459.015, s. 460.413, s. 461.013, or s. 466.028, as applicable.
The greater weight of the evidence in this case is to the effect that the diagnostic testing performed and ordered by the Respondent was reasonably calculated to assist the Respondent in arriving at a diagnosis and treatment of the patient's condition. Accordingly, the evidence fails to establish the violation charged in Count I, and Count I of the Administrative Complaint should be dismissed.
Count II of the Administrative Complaint charges that the Respondent "has violated Section 460.413(1)(m), Florida Statutes, by failing to maintain written chiropractic patient records that would justify the course of treatment of the patient." The greater weight of the evidence in this case is to the effect that the records maintained by the Respondent were sufficient to justify the course of treatment of the Patient. Accordingly, the evidence fails to establish the violation charged in Count II, and Count II of the Administrative Complaint should be dismissed.
Count III of the Administrative Complaint charges that the Respondent "has violated Section 460.413(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee." There is no clear and convincing evidence in this case of any such exercise of influence or exploitation of the patient. Accordingly, the evidence is insufficient to sustain the violation charged in Count III, and Count III of the Administrative Complaint should be dismissed.
Count IV of the Administrative Complaint charges that the Respondent "has violated Section 460.413(1)(r), Florida Statutes, by 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." There is no clear and convincing evidence in this case that the Respondent committed malpractice or that he failed to practice chiropractic at a level or care, skill, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. Further, the greater weight of the evidence is to the effect that the Respondent's treatment of the subject patient did not deviate from acceptable standards of chiropractic care. Accordingly, Count IV of the Administrative Complaint should be dismissed.
Count V of the Administrative Complaint charges that the Respondent "has violated Section 460.413(1)(v), Florida Statutes, through violation of Rule 59N-17.0065, Florida Administrative Code, by failing to maintain adequate patient records." At all times material to this proceeding the rule provisions referenced in Count V appeared at 61F2-17.0065, Florida Administrative Code, and read as follows:
61F2-17.0065 Minimal Recordkeeping Standards.
These standards apply to all licensed chiropractic physicians and certified chiropractic assistants. These standards also apply to those examinations advertised at a reduced fee, or free (no charge) service.
Adequate patient records shall be legibly maintained. Initial and follow-up services (daily records) shall consist of documentation to justify care. If abbreviations or symbols are used in the daily recordkeeping, a key must be provided.
All patient records shall include patient history, symptomatology, examination, diagnosis, prognosis, and treatment.
Provided the Board takes disciplinary action against a chiropractic physician for any reason, these minimal clinical standards will apply. It is understood that these procedures are the accepted standard(s) under this chapter.
The greater weight of the evidence in this case is to the effect that the Respondent's records at issue here satisfy the rule requirements quoted immediately above. Accordingly, the evidence does not establish a violation of Section 460.413(1)(v), Florida Statutes, and Count V of the Administrative Complaint should be dismissed.
