STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC MEDICINE, )
)
Petitioner, )
)
vs. )
) PAUL KEVIN CHRISTIAN, D.C., )
)
Respondent. )
Case No. 11-0722PL
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on August 17 through 19, 2011, in Tampa, Florida, before Susan Belyeu Kirkland, an Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Greg S. Marr, Esquire
Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Michael R. Lowe, Esquire
Jack T. Cook, Esquire Michael R. Lowe, P.A.
2180 West State Road 434, Suite 1124
Longwood, Florida 32779 STATEMENT OF THE ISSUES
The issues in this case are whether Respondent violated sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and
460.413(1)(r), Florida Statutes (2006),1/ and Florida
Administrative Code Rule 64B2-17.0065, and, if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On December 24, 2008, the Department of Health (Department) filed a three-count Administrative Complaint before the Board of Chiropractic Medicine (Board) against Respondent, Paul Kevin Christian, D.C. (Dr. Christian), alleging that he violated sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and
460.413(1)(r), Florida Statutes (2005-2007), and rule 64B2- 17.0065. Dr. Christian requested an administrative hearing.
The case was forwarded to the Division of Administrative Hearings on February 11, 2011, for assignment to an Administrative Law Judge. The final hearing was scheduled to commence on April 18, 2011. On March 28, 2011, the Department filed Petitioner's Unopposed Motion to Reschedule Final Hearing. The motion was granted by Order dated April 1, 2011. On July 6, 2011, Dr. Christian filed a motion to continue, and that motion was granted by Order dated July 7, 2011.
On March 3, 2011, the Department filed a Motion to Take Official Recognition of rules 64B2-16.003, 64B2-17.005, and 64B2-17.0065. The motion was granted by Order dated March 8, 2011.
On August 8, 2011, the parties filed an Updated Joint Pre- hearing Stipulation and stipulated to certain facts contained in
section (e) of the pre-hearing stipulation. To the extent relevant, those facts have been incorporated in this Recommended Order.
At the final hearing, counsel for the Department advised that he would not be presenting any evidence relating to paragraph 50 a, b, e, and f of Count Two of the Administrative Complaint, and paragraphs 44 a, b, c, d, e, g, h, and l2/ of Count One.
At the final hearing, Joint Exhibits 1 through 8 were admitted in evidence. The Department called the following witnesses: Dr. Christian; Peter Willis, D.C. (Dr. Willis); and
Petitioner's Exhibit 1 was admitted in evidence.
Dr. Christian testified in his own behalf and called the following witnesses: Dr. Willis; Donald H. Woeltjen, D.C.; Maurice Davidson, M.D. (Dr. Davidson); and David Kalin, M.D. (Dr. Kalin). Respondent's Exhibits 1 through 3 were admitted in evidence.
The six-volume Transcript was filed on September 21, 2011. The parties agreed at the final hearing to file their proposed recommended orders within ten days of the filing of the Transcript. On September 23, 2011, the Department filed Petitioner's Unopposed Motion to Extend the Deadline for Filing Proposed Recommended Orders. The motion was granted by Order
dated September 23, 2011, extending the time to file proposed recommended orders to October 10, 2011.
The parties timely filed their Proposed Recommended Orders. Dr. Christian's Proposed Recommended Order exceeded the maximum limit of 40 pages. On October 10, 2011, the Department filed a motion to strike Dr. Christian's Proposed Recommended Order. On October 10, 2011, Dr. Christian filed a response and requested that he be allowed to file an amended proposed recommended order with changes to line spacing and deleting discussion of attorney's fees and costs. By Order dated October 13, 2011, the motion to strike was granted, and the request to file an amended proposed recommended order was granted. On October 17, 2011, Dr. Christian filed Respondent's Amended Proposed Recommended Order. The parties' proposed recommended orders have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes.
Dr. Christian was at all times material to the violations alleged in the Administrative Complaint a licensed chiropractic physician in the State of Florida, having been issued license number 5756 on or about February 4, 1998.
At all times material to the violations alleged in the Administrative Complaint, Dr. Christian, Dr. Davidson, and
Dr. Kalin were employees of Comprehensive Physician Services, Incorporated (CPS). Dr. Christian was the sole stockholder of CPS.
On April 17, 2006, M.M. was involved in an automobile accident when the car, in which she was a front-seat passenger, hit a tree on the passenger side. The window next to M.M. shattered and M.M. received lacerations to the right temple area of her head.
M.M. was transferred by ambulance to the emergency room at Northside Hospital. While in the emergency room, a CT scan was performed on M.M.'s head. The CT evaluation was normal.
The lacerations were sutured, and M.M. was discharged from the emergency room.
On or about April 26, 2006, M.M. presented to CPS for treatment of injuries due to the automobile accident on
April 17, 2006. M.M., who was a minor at the time, was accompanied by her mother to CPS. M.M.'s complaints were headaches; neck pain and stiffness; mid-back pain and stiffness; lower back pain and stiffness; difficulty sleeping due to pain; and difficulty with concentration. She indicated that, on a scale of one to ten, with ten being the most, the stiffness in
her neck and middle back was a five. On examination, Dr. Christian found that M.M. had cervical and thoracic tenderness.
In his initial report, Dr. Christian noted the hyperabduction tests were positive, and there was "left side reduced pulse/paresthesia due thoracic outlet compression consistent with compression from seat belt trauma." However, the test results contained in the medical records show that there are negative findings on the hyperabduction tests. When questioned about the discrepancy, Dr. Christian testified that the positive findings were a result of the grip/pinch test that he performed. He indicated that he made a mistake in his initial report and that the report should have stated right side reduced pulse. He could not explain how the grip/pinch test would lead him to conclude that there was a reduced pulse because M.M.'s pulse would not be measured during a grip/pinch test nor could he explain how he could learn from a grip/pinch test that there was paresthesia. Later, he testified that the difference in the results was not due to the grip/pinch test, but was a result of a second hyperabduction test that he performed prior to the grip/pinch test. Dr. Christian's testimony is not credited.
Dr. Christian's practice is to have an assistant come into the examination room during the testing. As he performs the test, he tells the assistant the results of the test, and
the assistant will record the test results. The medical records do not show a second hyperabduction test being recorded by an assistant. Therefore, the examination results are contrary to the results stated in the initial report for April 26, 2006.
In his examination records of April 26, 2006,
Dr. Christian noted that there was "R [circled] Visual Acuity Diff." M.M.'s mother was present during the examination and observed Dr. Christian testing M.M.'s vision on April 26, 2006.
Dr. Christian testified that he first tested M.M.'s vision on May 24, 2011. His testimony is not credited.
Dr. Christian's practice is to put findings of the previous chiropractic examination on the report of the examination that he is currently conducting so that a comparison could be made. The examination report of April 26, 2006, and May 24, 2006, are the same with the exception of notations on the May 24, 2006, report of 5/23 near the present complaints section and the section where areas of muscle spasms on the spine are noted. In his follow-up report dated May 24, 2006, Dr. Christian wrote: "Certainly today I see evidence of her continuing to have some alterations of visual acuity . . .". Dr. Christian testified that he had incorrectly included the term "continuing" in this statement. Dr. Christian's testimony is not credited. His statement that the alterations of visual acuity were continuing comports with M.M.'s mother's testimony that the first visual
testing was done on April 26, 2006, and the examination report of April 26, 2006.
Based on the examination reports for April 26, 2006, and May 24, 2006, there is no indication of what tests
Dr. Christian used to test M.M.'s vision nor is there any indication of the exact nature of the problem with the right eye. Dr. Christian's initial report does not mention the visual acuity difference. His follow-up report of May 24, 2006, does not indicate the difference that M.M. is experiencing with her right eye. In his examination records of June 14, 2006, and July 25, 2006, Dr. Christian notes: " R [circled] side vision distance diff." In his final report of July 25, 2006,
Dr. Christian noted as a current symptom, "[r]ight sided visual alteration with peripheral." He listed as a diagnostic impression: "Concussion with residual affecting peripheral visual field on the right, persistent." However, contrary to his final report, Dr. Christian testified at final hearing that M.M.'s problem with her peripheral vision had improved.
On April 26, 2006, Dr. Christian's treatment plan included the following treatment for M.M. three times a week for four weeks: intersegmental traction, hot pack, and neuromuscular release for the full spine; inferential, alternating cervical to dorsal and dorsal to lumbar; full spine massage; and full spine aqua treatment. The therapist assistant
was to determine which treatment modalities and areas to treat at each treatment session. Dr. Christian signed each of the daily treatment notes.
On April 26, 2006, Dr. Christian referred M.M. to
Dr. Kalin. According to Dr. Christian, Dr. Kalin had experience in emergency rooms treating patients who had sustained trauma.
Dr. Christian wanted Dr. Kalin to look at the two lacerations that M.M. had sustained. However, there were no outward signs of infection of the lacerations, and the lacerations had healed. Dr. Christian also wanted to determine if there was any post concussion symptoms.
Dr. Kalin evaluated M.M. on May 1, 2006. His initial diagnosis was that she had a "cervical musculoskeletal ligamentous strain" and a "[s]ubacute lumbosacral musculoskeletal ligamentous strain." His examination did not reveal any abnormality with M.M.'s vision. He did find that the lacerations may leave permanent scarring.
In his interim report dated May 24, 2006,
Dr. Christian stated: "Dr. Kalin was not able to mention the fact that she [M.M.] struck her head or had laceration and dizziness with nausea and vomiting following the impact." This statement is contrary to what Dr. Kalin stated in his report.
Dr. Christian further noted in his report that he would follow- up with Dr. Kalin to see if Dr. Kalin had an addendum as to
whether there is additional follow-up for post-concussion symptomology.
In his report of May 1, 2006, Dr. Kalin did not make any findings of a concussion or post-concussion syndrome. On May 25, 2006, a staff member of CPS sent the following request to Dr. Kalin:
Dr. Kalin,
Dr. Christian asked if you could please make an addendum [sic] to your report on [M.M.] for her concussion-post concussion syndrome. Thanks!
Kimberly
Dr. Kalin replied: "pt had no symptoms of headache or memory/concentration when I saw her." No mention was made in Dr. Christian's interim report dated May 25, 2006, that
Dr. Kalin did not find any evidence of post-concussion syndrome.
On May 1, 2006, Dr. Christian wrote a prescription for hydrotherapy for M.M. for three times a week for four weeks.
M.M. received treatment at CPS on May 1, 2006. M.M. indicated to the therapist that on a scale of one to ten that she rated her low back pain and low back stiffness as a four and her neck stiffness as a five. The therapist noted that there was cervical and lumbar tenderness. M.M.'s treatment on May 1, 2006, consisted of hot therapy and hydrotherapy to the cervical, thoracic, lumbar, and sacral areas, and intersegmental traction to the cervical, thoracic, and lumbar areas.
X-rays of M.M.'s cervical and lumbar spine were ordered. The radiologist who read the X-rays had the impression that M.M. had a cervical muscle spasm and a lumbar muscle spasm.
On May 4, 2006, M.M. received treatment at CPS. She rated her neck stiffness and low back stiffness as a three. There was no notation of any tenderness by the therapist. M.M. received the following treatment in the thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, and hydrotherapy.
On May 4, 2006, ultrasound studies were performed on
M.M. by Charles W. Hirt, M.D. (Dr. Hirt). Dr. Hirt's impression was that there were findings that showed evidence of a left- sided thoracic outlet syndrome.
On May 9, 2006, M.M. returned to CPS for treatment.
She rated her neck stiffness and lower back stiffness as a two. The therapist noted that there was tenderness in the cervical and lumbar areas. M.M. was given hot therapy, intersegmental traction, and trigger point therapy in her cervical, thoracic, and lumbar areas. She received myofascial release, massage, and hydrotherapy in her cervical, thoracic, lumbar, and sacral areas.
On May 16, 2006, M.M. was treated at CPS. She rated her neck stiffness as a one and her low back stiffness as a two. The therapist noted tenderness in the lumbar area. The
treatment to M.M.'s cervical, thoracic, lumbar, and sacral areas included intersegmental traction, trigger point therapy, myofascial release, and massage. She was given interferential treatment to her lumbar and sacral areas and hot therapy to her cervical, thoracic, and lumbar areas.
On May 18, 2006, M.M. presented for treatment at CPS. She rated her neck and low back stiffness as a one. The therapist did not note any tenderness. M.M. received the following treatment in her cervical, thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, trigger point therapy, myofascial release, and massage.
On May 23, 2006, M.M. went to CPS for treatment. She rated her lower back stiffness as zero. The therapist noted tenderness in the cervical, thoracic, and lumbar areas. M.M. was given a massage and myofascial release in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment and trigger point therapy in her lumbar and sacral areas and hot therapy and intersegmental traction in her thoracic, lumbar, and sacral areas.
On May 24, 2006, Dr. Christian did a follow-up examination of M.M. M.M. rated the neck and lower back stiffness as zero. Dr. Christian noted in his follow-up report that all the symptoms that he had noted in his initial report of April 26, 2006, had improved. His follow-up report stated:
"Cerebellar function tests, as far as assessed are abnormal with a positive Rhomberg test for possible concussion." His follow- up report also stated: "Certainly today, I see evidence of her continuing to have some alterations of visual acuity and a positive Rhomberg, which would be consistent with post concussion syndrome."
On May 25, 2006, M.M. returned to CPS for further treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical and lumbar areas. M.M. was treated with myofascial release and massage in her cervical, thoracic, lumbar, and sacral areas. She received trigger point therapy in her lumbar and sacral areas and inferential treatment in her thoracic area. She also received intersegmental traction in her thoracic, lumbar, and sacral areas.
M.M. received treatment at CPS on May 30, 2006.
Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. Hydrotherapy, hot therapy, and intersegmental traction were provided to M.M. in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment in her lumbar and sacral areas.
On June 13, 2006, M.M. again returned to CPS for treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical, thoracic, and
lumbar areas. M.M. received intersegmental traction, myofascial release, and massage in her cervical, thoracic, lumbar, and sacral areas. M.M. was given hot therapy in her thoracic, lumbar, and sacral areas. She received trigger point therapy in her cervical and thoracic areas.
On June 14, 2006, M.M. presented at CPS for a follow- up visit with Dr. Christian. She rated her neck and low back stiffness as zero. He reduced her treatment to one per week for the next four to five weeks. In his examination record of
June 14, 2006, Dr. Christian noted: " R [circled] side vision distance diff."
On June 20, 2006, M.M. returned to CPS for treatment.
Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. M.M. was given hot therapy and intersegmental traction for her thoracic, lumbar, and sacral areas. She was given hydrotherapy for her cervical, thoracic, lumbar, and sacral areas.
On June 22, 2006, ultrasound studies were done on M.M. by Dr. Hirt. His impression was that she likely had thoracic outlet syndrome on the left side.
On May 24, 2006, Dr. Christian referred M.M. to Dr. Davidson for a second opinion for post concussion.
Dr. Davidson examined M.M. on June 27, 2006. In his report dated June 27, 2006, Dr. Davidson concluded that she had had a
mild concussion, a cervical strain, and a lumbosacral strain. He recommended that her soft tissue therapy be discontinued. Dr. Davidson did not find any abnormalities in M.M.'s vision.
On July 25, 2006, M.M. was examined by Dr. Christian.
M.M. rated her neck and low back stiffness as zero.
Dr. Christian noted the following in his final report dated July 25, 2006.
If the patient's symptoms of altered visual field persist and evaluation by an ophthalmologist or a neuro-ophthalmologist may be appropriate. If she begins to have any difficulty with sleep, mood swings, feelings of dizziness or persistent headaches a neuro-psychiatric evaluation for continued post concussion deficits may be appropriate.
Dr. Christian discharged M.M. on July 25, 2006, and
M.M. was to return for treatment on an as needed basis.
Dr. Christian's initial report dated April 26, 2006; interim report dated May 24, 2006; follow-up report dated June 14, 2006; and final report dated July 25, 2006, were dictated by Dr. Christian. The reports were being mailed to someone or some entity based on the note at the end of each report, which stated: "DICTATED BUT NOT PROOFREAD TO AVOID
DELAY IN MAILING." At the closing of each report, Dr. Christian stated: "If I can be of further assistance in this regard, please do not hesitate to contact me." It is not clear to whom the reports were directed, but it is clear that the reports were
meant to convey the examination, evaluation, and treatment of
M.M. to the reader of the report. These reports did not accurately report the examination results of M.M. in at least two instances.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 & 120.57, Fla. Stat. (2011).
The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
The Department alleges that Dr. Christian violated sections 460.413(1)(m), 460.413(1)(n), 460.413(1)(r), and 460.413(1)(ff), which provide:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
Failing to keep legibly written chiropractic medical records that identify clearly by name and credentials the licensed chiropractic physician rendering, ordering, supervising, or billing for each examination or treatment procedure and that justify 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 for the purpose of financial gain of the licensee or a third party.
* * *
(r) Gross or repeated malpractice or the failure to practice chiropractic medicine 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 an administrative law judge, 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.
* * *
(ff) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
The Department also alleges that Dr. Christian violated rule 64B2-17.0065, which provides:
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.
Medical records are maintained for the following purposes:
To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment.
To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition.
To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care.
To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient.
The medical record shall be legibly maintained and shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs dispensed or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. 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 and/or wellness care,
Examination finding(s), including X- rays when medically or clinically indicated,
Diagnosis,
Prognosis,
Assessment(s),
Treatment plan, and
Treatment(s) provided.
All entries made into the medical records shall be accurately dated. The treating physician must be readily identifiable either by signature, initials, or printed name on the record. Late entries are permitted, but must be clearly and accurately noted as late entries and dated accurately when they are entered into the record.
Once a treatment plan is established, daily records shall include:
Subjective complaint(s)
Objective finding(s)
Assessment(s)
Treatment(s) provided, and
Periodic reassessments as indicated.
In situations involving medical examinations, tests, procedures, or treatments requested by an employer, an insurance company, or another third party, appropriate medical records shall be maintained by the physician and shall be subject to Section 456.057, Florida
Statutes. However, when such examinations, tests, procedures, or treatments are pursuant to a court order or rule or are conducted as part of an independent medical examination pursuant to Section 440.13 or 627.736(7), Florida Statutes, the record maintenance requirements of Section 456.057, Florida Statutes, and this rule do not apply. Nothing herein shall be interpreted to permit the destruction of medical records that have been made pursuant to any examination, test, procedure, or treatment except as permitted by law or rule.
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.
In Count One of the Administrative Complaint, the Department alleges that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065 as set forth in paragraph 44 of the Administrative Complaint in one or more of the following ways:
By failing to clearly note whether he actually tested M.M.'s cranial nerves or cerebellar function as part of the initial examination;
By failing to record or maintain notes indicating the he performed ocular testing of patient M.M. including gaze, nystagmus, or funduscopic evaluation when she first presented for treatment;
By failing to record or maintain the trajectory of radiation with respect to the foraminal compression and axial loading tests;
By failing to explain in the patient notes the discrepancy between his recommendation that patient M.M. avoid strenuous activities and his request for patient M.M. to complete a functional capacity assessment;
By failing to document the medical necessity of the functional capacity assessment ordered by Respondent for patient
M.M. on or about April 26, 2006;
By failing to document the medical necessity of the May 1, 2006, evaluation conducted [by] a medical doctor;
By failing to explain why patient M.M. was only provided chiropractic adjustment on May 24 and July 15, 2006;
By failing to document any information regarding follow-up or compliance with respect to the medical doctor's recommendation that patient M.M. perform therapeutic exercises or use a cervical pillow;
By failing to adequately describe the patient M.M.'s subjective or objective symptoms in the daily treatment notes;
By failing to adequately describe the treatment provided to patient M.M. in the daily treatment notes;
By failing to record or maintain daily treatment notes that justified the totality of the care provided to patient M.M.;
By failing to record patient notes which justify the medical necessity for the functional capacity assessment conducted on or about May 24, 2006;
By failing to record or maintain notes that justify the medically necessity of the
June 27th, 2006, evaluation completed by a medical doctor; or,
By failing to further evaluate or document the extent of patient M.M.'s visual alteration.
The Department did not present evidence on items (a), (b), (c), (d), (e), (g), (h), and (l). Thus, the Department has failed to establish those allegations.
The Department failed to establish by clear and convincing evidence that Dr. Christian failed to record or maintain notes that justified the medical necessity of the evaluations by Dr. Kalin and Dr. Davidson. The records do indicate that there was a possibility that M.M. may have had a mild concussion, and this diagnosis is supported by
Dr. Davidson's evaluation. However, it should be noted that the medical records do not indicate what treatment was provided for a concussion.
The Department has failed to establish by clear and convincing evidence that Dr. Christian failed to record what treatments were provided to M.M. The record accurately reflects the treatments that were provided.
The Department has established by clear and convincing evidence that Dr. Christian failed to record or maintain daily treatment notes that justified the totality of the care provided to M.M. On May 30, 2006, and June 20, 2006, the daily treatment
notes do not show any subjective findings or objective findings that would justify the treatment provided. There were no notes indicating why treatment was provided in the areas in which the treatment was given. Dr. Christian left the determination of the areas of treatment to his assistant, but the records do not include the justification for the treatment areas that were chosen. The Department has established by clear and convincing evidence that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) by violating rule 64B2-17.0065(3), which requires that daily records justify the treatment that is provided.
The Department has established by clear and convincing evidence that Dr. Christian failed to accurately describe the hyperabduction test results on his initial examination report of April 26, 2006. His noting that the hyperabduction test results were positive on the initial examination report created an inconsistency in the medical records so that it would be impossible to tell from the medical records whether the hyperabduction test was negative or positive. The Department has established by clear and convincing evidence that
Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065(3).
The Department has established by clear and convincing evidence that Dr. Christian failed to document the extent of M.M.'s vision alteration. Although he noted on his April 26,
2006, examination that M.M. had a vision problem, he does not indicate that the problem with M.M.'s visual deals with her peripheral vision until three months later when he writes his final report. His examination report prior to the July 25, 2006, report are not sufficient to document the results of his examination of M.M.'s vision. He indicates in his final report that her visual problem is persistent but testifies that her visual problem had improved. Neither Dr. Davidson nor Dr. Kalin found any difficulties with M.M.'s vision. The final report does not accurately reflect that M.M.'s vision problem had improved. The Department has established by clear and convincing evidence that Dr. Christian violated
sections 460.413(1)(m) and 460.413(1)(ff), by violating rule 64B2-17.0065(3) and (4)(c).
In Count Two of the Administrative Complaint, the Department alleges that Dr. Christian violated section 460.413(1)(n) as set forth in paragraph 50 of the Administrative Complaint in one or more of the following ways:
By conducting a functional capacity assessment of patient M.M. on or about April 26, 2006, without sufficient patient records that justified the necessity [of] the assessment;
By billing patient M.M.'s insurance company separately for detailed evaluation and functional capacity assessment both conducted on or about April 26, 2006, even
though the assessment is included as part of the evaluation;
By referring patient M.M. for evaluation that was conducted by a medical doctor on or about May 1, 2006, without sufficient patient record[s] that justified the necessity of evaluation;
By charging patient M.M.'s insurance company for numerous treatment modalities without medical records sufficient to justify their necessity;
By conducting a functional capacity assessment of patient M.M. on or about May 24, 2006, without sufficient patient records that justified the necessity [of] the assessment;
By billing patient M.M.'s insurance company separately for detailed re- evaluation and a functional capacity assessment both conducted on or about May 24, 2006, even though the assessment is included as part of the evaluation; or
By referring patient M.M. for evaluation that was conducted by a medical doctor on or about June 27, 2006, without sufficient patient record[s] that justified the necessity of the evaluation.
The Department did not present any evidence of the allegations contained in (a), (e), and (f). Thus, the Department has failed to establish those allegations. The Department failed to establish by clear and convincing evidence that the referrals to Dr. Kalin and to Dr. Davidson were not based on records that justified the referral. The Department has failed to establish
by clear and convincing evidence the remaining allegations dealing with billings to insurance companies.
In Count Three of the Administrative Complaint, the Department alleges that Dr. Christian violated section 460.413(1)(r), in one or more of the following actions:
By failing to record that he performed ocular testing of patient M.M. including gaze, nystagmus, or funduscopic evaluation when she first presented for treatment; or
By failing to refer patient M.M. for an evaluation by a visual specialist based on her continued complaints of visual problems.
The Department did not present evidence concerning the allegation in (a) and, thus, has failed to establish that allegation. The Department failed to establish by clear and convincing evidence that Dr. Christian should have referred M.M. to a visual specialist concerning her visual problems. Both
Dr. Kalin and Dr. Davidson checked M.M.'s vision and did not find any problems. It is not clear from the evidence presented that M.M. was continuing to have visual problems after seeing Dr. Davidson or if Dr. Christian's records were just recording what he had found in the past.
On October 31, 2011, Respondent filed Respondent's Motion for Award of Costs and Attorney's Fees, stating that Petitioner had filed portions of the Administrative Complaint for an improper purpose, and, pursuant to section 120.595(1),
Florida Statutes (2011), Petitioner was entitled to attorney's fees and costs for the defense of those portions of the Administrative Complaint. Section 120.595(1)(e)1., Florida Statutes (2011), defines "improper purpose" as "participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." Having considered the case in its totality, it is found that the Department did not participate in this case to harass, to cause unnecessary delay, for a frivolous purpose, or to needlessly increase the cost of litigation. Therefore, the motion for attorney's fees and costs is denied.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065; finding that Dr. Christian did not violate sections 460.413(1)(n) and 460.413(1)(r); imposing an administrative fine of $2,500; placing Dr. Christian on probation for one year; and requiring Dr. Christian to attend a continuing education course on record-keeping.
DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida.
S
SUSAN BELYEU KIRKLAND
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
ENDNOTES
1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2006 version.
2/ There were two paragraphs in Count One numbered as 44. Counsel for the Department was referring to the second paragraph numbered 44.
COPIES FURNISHED:
Michael R. Lowe, Esquire Jack T. Cook, Esquire Michael R. Lowe, P.A.
2180 West State Road 434, Suite 1124
Longwood, Florida 32779
Greg S. Marr, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Nicholas Romanello, General Counsel Department of Health
4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
Bruce Deterding, Executive Director Board of Chiropractic Medicine Department of Health
4052 Bald Cypress Way, Bin C-07 Tallahassee, Florida 32399-1701
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 28, 2012 | Agency Final Order | |
| Jun. 28, 2012 | Agency Final Order | |
| Mar. 05, 2012 | Agency Final Order | |
| Nov. 15, 2011 | Recommended Order | Doctor failed to accurately describe his examination in his medical records and failed to maintain daily treatment notes that justified to the totality of the care provided to the patient. |
BOARD OF CHIROPRACTIC vs DOUGLAS N. GRAHAM, 11-000722PL (2011)
BOARD OF OSTEOPATHIC MEDICAL EXAMINERS vs. JOHN W. GAUL, 11-000722PL (2011)
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE vs GARY BORAKS, D.C., 11-000722PL (2011)
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE vs MARTIN GROSSMAN, D.C., 11-000722PL (2011)
BOARD OF MEDICAL EXAMINERS vs. ORLANDO C. RAMOS, 11-000722PL (2011)
