ce on vets STATE OF FLORIDA PRACTITIONER REGULATION DEPARTMENT OF HEALTH | . . 206 APR.17 AMIIE49 DEPARTMENT OF HEALTH, Petitioner, Vv. CASE NO. 2005-63011 JOHN O'NEILL, A.P., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Acupuncture against the Respondent, John O'Neill, A.P., and in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of acupuncture pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 457, Florida Statutes. 2, At all times material to this Complaint, Respondent was registered with the Board of Acupuncture as an acupuncturist, having been ° issued license number 269. 3:\PSU\Allied Health\ Acupuncture Board\April Skilling\Administrative Complaints\O'Neill(AP)457,109(1)¢j)(m)(q)(P) 2005-6301 1.doc ' ro'd aGtkkL 9002 ¢ #ny oa:z— 900z 2 Any qe #1 Ud oo nm, 3. Respondent's address of record is 2454 McMullen Booth Road, Suite 609, Clearwater, Florida 33759. 4. Respondent maintains a place of business for acupuncture treatment named “Clearwater Natural Medical Center” (Medical Center) at the address listed above. 5. On or about August 5, 2005, Patient D.H., a 39 year-old female and her significant other, Patient D.R., a 39 year-old male, presented to Respondent at the Medical Center. 6. Patient D.H, presented to Respondent for an evaluation of a mole on her left calf and a nutritional evaluation. 7. Patient D.R. presented to Respondent for a nutritional evaluation only. 8. Upon presentation to the Medical Center, Respondent requested that D.H. and D.R. retire to separate examination rooms for evaluation. 9. Respondent then entered Patient D.H.’s examination room and requested that she remove her bra.as he detected a problem in her right breast. Specifically, he stated that the metal in her bra was causing false energy readings, 10, Respondent then left D.H.’s room and D.H. removed her bra. 3:\PSU\Allied Health\Acupuncture Board\April Skilling\Acministrative Complaints\O'Netl(AP)457,.109(1)()(m)(q){p) 2005-63011,doc 2 god aGtlkL 9002 ¢ #ny oa:z— 900z 2 Any rn om, 11. Respondent then entered D.H.’s room alone and proceeded to feel the bottom and sides of her right breast and diagnosed her with copper in her liver and a non-specific degenerative brain disease, which he could” ~ treat with supplements and laser treatments. 12. Respondent told Patient D.H, that her calf was free of cancer. 13. Respondent did not refer Patient D.H. to any specialists concerning the mole on her left calf, non-specific degenerative brain disease, or copper in her liver. 14. Respondent did not order any supporting diagnostic tests for , Patient D.H. concerning the mole on her left calf, non-specific degenerative brain disease, or copper in her liver. 15. Respondent then entered Patient D.R.’s room and diagnosed him with nickel in his liver and stated that D.R. was allergic to his own liver, 16. Respondent did not refer Patient D.R. to any specialists . concerning the nickel in his liver and/or a suspected allergy to his liver. 17. Respondent did not order any supporting diagnostic tests for Patient D.R.’s nickel in his liver and/or a suspected allergy to his liver. 18, Patient D.H. was subsequently diagnosed with malignant melanoma in her left calf. J:APSU\VAllied Health\Acupuncture Board\April Skilling\Administrative Complaints\O'Neill(AP)457.109(1)(j)(m)(q)(p) 2005-6301 1.doc ‘ god aGtlkL 9002 ¢ #ny To:z~t 9002 2 Bny COUNT ONE 19. Petitioner realleges and incorporates paragraphs one (1) through eighteen (18), as if fully set forth herein. 20. Section 457.109(1)(x), Florida Statutes (2005), sets forth grounds for disciplinary action by the Board of Acupuncture for violating any - provision of Chapter 456 or Chapter 457, or any rules adopted pursuant thereto. 21. Section 456,072(1)(u), Florida Statutes (2005), sets forth disciplinary guidelines for engaging or attempting to engage in sexual . misconduct as defined and prohibited by Section 456.063(1), Florida Statutes (2004). | 22. Section 456.063(1), Florida Statutes (2005), states that sexual activity in the practice of a health: care profession means violation of the professional relationship through which the health care practitioner uses such relationship to engage or attempt to engage the patient or client in, or. to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession. Sexual misconduct in the practice of a health care profession is prohibited. ” j:\PSU\Allied Health \Acupuncture Board\April Skilling\Administrative Complaints\O'Neill(AP)457.109(1)()(m)(a)(p) 2005-6301 i.doc éo'd BStLL 9002 g #ny To:z— 900% 2 ny 23. Section 457.109(1)()), Florida Statutes (2005), sets forth grounds for disciplinary action by the Board of Acupuncture for exercising influence within the patient-acupuncturist relationship for purposes*’of: engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with her acupuncturist. 24. Respondent exercised influence within the patient-acupuncturist relationship for purposes of engaging Patient D.H. in sexual activity, or used his professional relationship to engage or attempt to engage Patient D.H., or | to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession, by engaging or attempting to engage Patient D.H. in sexual activity when Respondent inappropriately performed a breast examination of Patient D.H. | 25. Based on the foregoing, Respondent violated Section , 457,109(1)(x), Florida Statutes (2005), by violating 456.072(1)(u), Florida Statutes (2005), or by ‘violating Section 457.109(1)6), Florida Statutes (2005), by engaging or attempting to engage Patient D.H. in sexual misconduct, or by exercising influence within the patient-acupuncturist J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\O'Neill(AP)457,109(1)()(m)(q)¢p) 2005-6301 1.doc aod BStLL go02 g #ny To:z~t 9002 2 Bny a | ~ relationship for purposes of engaging Patient D.H. in sexual activity, when Respondent inappropriately performed a breast examination of Patient D.H. 26. Petitioner realleges and incorporates paragraphs one (1) through eighteen (18), and paragraph twenty (20), as if fully set forth herein. . 27. Section 457.109(1)(m), Florida Statutes (2005), sets forth grounds for disciplinary action by the Board of Acupuncture for failing to keep written medical records which are consistent with the practitioner's style of acupuncture justifying the course of treatment of the patient. 28, Rule 64B1-10.001, Florida Administrative Code, provides that records for each patient must at least include the following: a. _ Patient’s medical history; b. = Acupuncture diagnostic impressions; | C. Points used and/or treatment procedures administered at each visit: d. Acupuncturist’s recommendations; e. Patient progress notes; J;\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\O'Neill(AP)457,109(1)(j)(m)(q)(p) 2005-6301 1.doc 60"d BStLL 9002 g #ny To:z— 900% 2 ny - oo f. Laboratory test results when appropriate and medically necessary; and, | g. Imaging films, reports or test results when appropriate and medically necessary, 29. Respondent failed to keep written medical records consistent with the Respondent's style of acupuncture justifying the course of treatment of Patient D.H. and/or Patient D.R., in one or more of the following ways: , a. __ By failing to keep written medical records that support and/or justify Respondent’s diagnostic impressions for Patient D.H.; b. By failing to keep written. medical records that support and/or justify Respondent’s diagnostic impressions for Patient D.R.; c. By failing to keep written medical records that include any type of a SOAP note (Subjective, Objective, Assessment and Plan) for Patient D.H.,; , d. _By failing to keep written medical records that include any type of a SOAP note (Subjective, Objective, Assessment and Plan) for Patient D.H. J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\C’Neill(AP}457.109(1)(j)(m)(q)(p) 2005-63011 .doc aob'd BStLL 9002 g #ny To:z— 900% 2 ny a A 30. Based on the foregoing, Respondent violated Section 457.109(1)(m), Florida Statutes (2005), or violated Section 457.109(1)(x), Florida Statutes (2005), by violating Rule 64B1-10.001, when Respondent failed to keep written medical records consistent with Respondent's style of acupuncture justifying the course of acupuncture treatment for Patient D.H. COUNT THREE 31. Petitioner realleges and incorporates paragraphs one (1) through eighteen (18) as if fully set forth herein. 32. Section 457.109(1)(p), Florida Statutes (2005), sets forth grounds for disciplinary action by the Board of Acupuncture for gross or repeated malpractice or the failure to practice acupuncture with that level of care, skill, and treatment which is recognized by a reasonably prudent similar acupuncturist as being acteptable under similar conditions and circumstances. 33. Respondent failed to practice acupuncture with that level of care, skill, and treatment recognized by a reasonably prudent similar acupuncturist as being acceptable under similar conditions and circumstances, in one or more of the following ways: T:APSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\@'Neill(AP)}457,109(1))(m)(a)(P) 2005-63011.doc 8 LL'd gotzk gone g #ny ZO:zT 900% 2 Bry an lan a. __ By failing to completely document Respondent's care for Patient D.H.; b. By failing to refer Patient D.H. to an appropriate specialist = for suspected cancer in the mole on her calf; c. __ By failing to refer Patient D.H. to an appropriate specialist in regards to suspected copper in her liver; d. By failing to refer Patient D.H. to an appropriate specialist — in regards to her “non specific degenerative brain disease”; e, By inappropriately performing a breast examination of Patient D.H.; | f. By failing to completely document Respondent's care for Patient D.R.; f. By failing to refer Patient D.R. to an appropriate specialist in regards to suspected nickel in his liver, and/or a suspected allergy to his liver. 34. Based on the foregoing, Respondent violated Section 457.109(1)(p), Florida Statutes (2005), by failing to practice acupuncture with that level of care, skill, and treatment recognized by a reasonably | prudent similar acupuncturist under similar conditions and circumstances. 2005-63011,doc J:\PSU\Allied Health\Acupuncture Board\April Skilling Administrative Complaints\O'Neill(AP)457.109(1)((m)(q)(p) 9 zk'd gotzk gone g #ny ZO:zT 900% 2 Bry COUNT FOUR 35. Petitioner realleges and incorporates paragraphs one (1) “through eighteen (18) as if fully set forth herein. 36. Section 457.109(1)(q), Florida Statutes (2005), sets forth grounds for disciplinary action by the Board of Acupuncture for practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which Respondent knows or has . reason to know that he is not competent to perform. 37, Respondent practiced or offered to practice beyond the scope ' permitted by law, or accepted and performed professional responsibilities which Respondent knows or has reason to know that he is not competent to perform, in one or more of the following ways: a. By diagnosing Patient D.H. with copper in her liver, | without supporting tests, and/or referrals, and/or justification; b, By diagnosing Patient D.H. as being cancer free, without supporting tests, and/or referrals, and/or justification; c. By diagnosing Patient D.R. with -having nickel in his liver, without supporting tests, and/or referrals, and/or justification; J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\O'Neill(AP)457,109(1)()(m)(q)(P) 2005-63011.doc 10 el'd gotzk gone g #ny ZO:zT 900% 2 Bry o ~ d. By diagnosing Patient D.R. as being allergic to his own liver, without supporting tests, and/or referrals, and/or justification. 38. Based on the foregoing, Respondent violated Section 457.109(1)(q), Florida Statutes (2005), by practicing or offering to practice beyond the scope permitted by law, or by accepting and performing professional responsibilities which Respondent knows or has reason to know that he is not competent to perform. | WHEREFORE, Petitioner respectfully requests that the Board of Acupuncture enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a - reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems approptiate. 4 J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\O'Nelll(AP)457.109(1)()(m)(q)(P) 2005-63011.doc ii Pled gotzk gone g #ny ZO:zT 900% 2 Bry ao os SIGNED this dayof_. 2006. M. Rony Francois, M.D., M.S.P.H., Ph.D. Secretary, Department of Health rai Dawn M, a Fe. wi Assistant General Counsel DOH, Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 0805165 (850) 245-2640 x-8112 Office (850) 245-4680 Facsimile PCP: “in if 13,9006 PCP Members: _JJ4a De te Graanlen, 2:\PSU\Allied Health\Acupuncture Board\April Skilting\Administrative Complaints\O'Neill(AP)}457,109(1)(J)(m)(q)(P) 2005-63011.dae 12 §k'd gotzk gone g #ny eo:zt 900% 2 Bry

Docket for Case No: 06-002833PL