Findings Of Fact Lawrence A. Johnson, D.C., is duly qualified and licensed to practice as a Chiropractor in the State of Florida. Dr. Johnson holds a license issued by the Florida State Board of Chiropractic Examiners. From on or about July 18, 1975 until August 18, 1975, Dr. Johnson treated Mabel-Ann Miller. Ms. Miller had been having pain in her back and legs and was seeking chiropractic treatment in the hope of alleviating the pain. Ms. Miller visited Dr. Johnson's office on approximately twenty occasions during the one month that she was under his care. The testimony from several of the witnesses was understandably somewhat vague with respect to what was said or done on any given visit. It is apparent, however, that during the early consultations with her, Dr. Johnson told her that he could help her, and that more than a year of treatment would be necessary. Dr. Johnson initially represented to her that the cost of treatment would be approximately $200, and that she would be permitted to pay $5 per week and the remainder when she finished her schooling. Dr. Johnson diagnosed a degenerated or herniated disc, a scoliosis or curvature of the spine, and a pelvic obliquity. Dr. Johnson told Ms. Miller that she was loosing fluid from her spine, and that unless she received immediate chiropractic treatment she would require an operation within a year, that the operation would have only a 50/50 chance of success, and that without chiropractic treatment she would stand a very good prospect of spending her life in a wheelchair. Mabel-Ann Miller's boyfriend, Chuck Alexander, had been Dr. Johnson's patient prior to the time that Ms. Miller went to Dr. Johnson. Alexander told Dr. Johnson about Ms. Miller, and prior to Ms. Miller's seeing Dr. Johnson as a patient, Alexander agreed to pay all of her expenses that she could not pay herself. He signed an agreement to this effect (licensee's Exhibit 6). The existence of this side agreement was not revealed to Ms. Miller until her second, third, or fourth visit. Ms. Miller became incensed at the arrangement, and told Dr. Johnson that she would pay her own bills. Dr. Johnson then related to her that the cost of her treatments would exceed $1,000. He told her that he would treat her on a "case fee" basis for $1,060.30. It was agreed that she would pay him a small portion of this case fee until she finished her schooling and was able to pay the entire bill. There after Dr. Johnson endeavored to have Ms. Miller sign a note for the "case fee". He initially requested 7 percent interest on the note, but later changed that amount to 5 percent. A copy of an agreement to pay which Dr. Johnson presented to Ms. Miller was received in evidence as Board Exhibit 6. Ms. Miller never signed the agreement. The testimony respecting Mabel-Ann Miller's condition varied somewhat. Dr. Johnson's diagnosis did not vary to an extraordinary degree, however, from the diagnosis given by other chiropractors, and by Dr. Hobby, a Medical Physician. The most creditable testimony demonstrates that Ms. Miller had a very mild curvature of the spine or scoliosis. She suffered a pelvic obliquity. Her left pelvis was 1.2 centimeters higher than her right pelvis. The pain being suffered by the patient was primarily muscular in nature. Ms. Miller would have benefited from chiropractic treatments, but her condition was not so severe as to require more than a year of intensive chiropractic therapy. Primarily she needed a good exercise program. After leaving Dr. Johnson's care, Ms. Miller submitted to the care of Dr. Hobby, who advised that she use an elevation on her shoe to level the pelvis and engage in an exercise program. She followed Dr. Hobby's advice, and at least up until the time of the hearing her condition improved, and she was no longer suffering pain. As has been said, Dr. Johnson's diagnosis of Ms. Miller's condition was not inaccurate. His statements respecting the severity of the condition were, however, quite exaggerated. Any disc deterioration that Ms. Miller suffered was very slight. Her scoliosis was not so severe as to require intensive chiropractic treatment. Her pelvic obliquity was not a severe problem. Dr. Johnson's statement that she would require surgery if she did not receive immediate chiropractic attention was not true. Neither was it true that she would require more than a year of intense chiropractic treatment. Dr. Johnson frequently utilized the "case fee" system of billing, and he attempted to utilize this system in billing Mabel-Ann Miller. Under the "case fee" system, a patient pays a lump sum for all needed chiropractic treatment rather than a per-visit fee. The testimony revealed that the average per-visit fee for chiropractic services in the St. Petersburg area varied from $8 to $12. Dr. Johnson's quoted "case fee" of more than $1,000 is so out of line with typical fees charged in the St. Petersburg area as to raise suspicions respecting Dr. Johnson's motives. There was no reason to expect that Ms. Miller required so many treatments as to justify such a case fee. Dr. Johnson's exaggerated statements respecting her condition could only have been motivated by his desire to have her contract for a fee far out of line with fees normally charged in the St. Petersburg area, and far out of line with the nature of treatment that Ms. Miller needed whatever fees were charged. Since Ms. Miller never signed a note agreeing to a "case fee" Dr. Johnson rendered her a statement for services on a per-visit or per-service basis. The statement was for $1,411.16. Ms. Miller visited Dr. Johnson's office on fewer than twenty occasions. Although she enjoyed the full range of services available at Dr. Johnson's office during these visits, the treatment and services she received were not remotely worth the amount which Dr. Johnson billed her. Dr. Johnson never had any agreement with the patient which would have justified such a bill which so far exceeds the community standards of the value of chiropractic services. During the time that Ms. Miller was under Dr. Johnson's care she received treatment known as Galvanic treatment in his office. A Galvanic machine renders heat to areas of the patient's body where the pads from the machine are placed. Use of the machine is somewhat risky in that a patient can be burned as a result of errors that are easy to make. Galvanic treatment was rendered to Ms. Miller at Dr. Johnson's office by Barbara Duynslager. Ms. Duynslager was trained in use of the Galvanic machine primarily by Dr. Johnson's wife, who served as Dr. Johnson's office manager. Dr. Johnson witnessed Ms. Duynslager using the machine on two occasions. Generally she was supervised in use of the machine, if at all, by Dr. Johnson's wife. It is normal procedure in the St. Petersburg area for chiropractic assistants to watch from five to ten Galvanic treatments and to be closely supervised on from five to ten more treatments before they are permitted to administer treatments unsupervised. Ms. Duynslager was given less training than that. Given the community standards, and given the risk involved in using the machine, it is apparent that Ms. Duynslager was not adequately trained. During the time that she was being treated, Ms. Miller received a minor burn on her lower back. There was no direct testimony from which it could be concluded that the burn came from the Galvanic machine; however, there is ample circumstantial evidence from which it can be determined that she did receive the burns from the machine. The burns appeared during the time she was receiving Galvanic treatment, the nature of the irritation is consistent with a Galvanic burn, and no other source of such an irritation was known. There was no evidence from which it could be determined that Barbara Duynslager was negligent in using the machine; however, the existence of the burn dramatizes the necessity for careful training on the machine. During late September and early October, 1975, Dr. Johnson consulted Philip W. Settepani, as a patient. Mr. Settepani was experiencing back pains, and he sought chiropractic assistance from Dr. Johnson. Dr. Johnson showed Settepani x-rays of his back, and described what Dr. Johnson characterized as "spurs" on the x-rays. Mr. Settepani was quite upset at what he saw on the x- rays, and he eventually sought and received chiropractic treatment from a Dr. Tilka rather than Dr. Johnson. Dr. Tilka did not describe Mr. Settepani's condition as "spurs". This led Mr. Settepani to believe that Dr. Johnson either made an erroneous diagnosis or misrepresented the diagnosis in order to scare the patient. Several of the expert witnesses who testified identified Mr. Settepani's condition as spurs . It is apparently the use of that term which caused Mr. Settepani to complain to the Board of Chiropractic Examiners. There is no evidence from which it could be concluded that Dr. Johnson made an erroneous diagnosis of Mr. Settepani, or made any fraudulent or misleading statements to Mr. Settepani. In early February, 1976, Ms. Shirley Sabo visited Dr. Johnson's office as a patient. Dr. Johnson's wife told Ms. Sabo that Dr. Johnson never had a patient he couldn't cure, and that the cure would be quick. There was no evidence from which it could be determined that these statements were authorized by Dr. Johnson. Dr. Johnson informed the patient that she would require approximately one year of treatment, and that the cost would be $1,000. Ms. Sabo did not continue treatment with Dr. Johnson. She eventually received treatment from another Chiropractor and was billed $160 for x-rays and twelve visits. The fee quoted by Dr. Johnson was far out of line with customary fees in the St. Petersburg area, and is difficult, if not impossible, to justify. Nonetheless, there is no evidence from which it could be determined that Dr. Johnson misrepresented any facts to Ms. Sabo. Dr. Johnson instituted two law suits under the name Accident & Industrial Injury Clinic, Inc. The name Accident & Industrial Injury Clinic, Inc. was recorded in the public records of Pinellas County as a fictitious name for Johnson Chiropractic Clinic. Dr. Johnson performs as a sole practitioner. There was no other evidence respecting any advertising undertaken by Dr. Johnson in the name of a clinic, or any announcements made by Dr. Johnson that his office was a clinic.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Corrected Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed chiropractic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Chiropractic Medicine has found probable cause to suspect that the chiropractic physician has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a chiropractic physician licensed in the State of Florida, having been issued license number CH 2363. Background / Arrangement with Dr. Wagner In or around 1975, Respondent completed his training at the National University of Health Sciences and began to practice chiropractic medicine shortly thereafter. Some 15 years later, Respondent and an acquaintance—— Dr. Joseph Wagner, also a licensed chiropractor in the State of Florida——matriculated at a medical school in the Dominican Republic. Although both Respondent and Dr. Wagner ultimately earned Doctor of Medicine ("MD") degrees in the mid 1990s, Respondent was not licensed in Florida to practice as an MD until early 2006. Significantly, Dr. Wagner never obtained licensure as a medical doctor. In 2007, Respondent and Dr. Wagner entered into a joint venture designed, in the words of Respondent, to "expand" Dr. Wagner's chiropractic practice. At that time, and for the duration of their business agreement, Respondent's principal place of business was located in Palm Beach County, while Dr. Wagner practiced chiropractic medicine in Daytona Beach. Under the joint venture (which continued until August 2011, when both their offices were raided by the Federal Bureau of Investigation), Respondent traveled to Daytona Beach several times each month and interacted with Dr. Wagner concerning some, but not all, of Dr. Wagner's chiropractic clients (hereinafter "joint-venture clients" or "JVCs"). From what can be gleaned of the credible portions of Respondent's deposition and final hearing testimony, it appears that Respondent's activity with respect to JVCs included a review of client files, and, in some cases, a determination that one or more medications——including narcotics——should be prescribed. Indeed, Respondent's level of participation was so minimal that his face-to-face interaction with JVCs consisted, at most, of an initial introduction, and on no occasion did Respondent personally examine——or perform treatments upon——any JVC. At the conclusion of an office visit, Dr. Wagner——and Respondent, if the JVC was seen on a day when Respondent was present in the Daytona office——dictated medical notes that Dr. Wagner usually transcribed at a later time. Respondent has acknowledged, both at the final hearing and during his deposition, that he provided Dr. Wagner with blanket authority to create claim forms and medical notes in connection with each JVC. Incredibly, Respondent also granted Dr. Wagner complete authority to affix his (Respondent's) signature to claim forms and submit them——without Respondent looking at the forms beforehand——to insurance carriers for reimbursement. This was accomplished not by the use of a stamp, which medical professionals often provide to their subordinates to expedite business affairs, but by Dr. Wagner manually signing, in cursive, "John P. Christensen" inside the box of the claim form labeled "signature of the physician or supplier." Another unusual aspect of the business arrangement between Respondent and Dr. Wagner was the manner in which they dealt with reimbursement checks from insurance carriers. By agreement, reimbursement checks for claims that related to JVCs were received by mail at Dr. Wagner's place of business in Daytona Beach. Upon their receipt, Dr. Wagner deposited the checks into a SunTrust checking account for which Respondent had sole signatory authority. At the end of each month, Respondent would transfer the entire balance of the SunTrust account into his business account at PNC Bank. Shortly thereafter, Respondent would draft a check on the PNC account to Dr. Wagner in an amount equal to 50 percent of the monthly proceeds.2/ Against the foregoing backdrop, the undersigned will turn to the specific allegations enumerated in the Complaint, namely: that Dr. Wagner, in connection with JVCs, submitted claims to an insurance carrier for services that were never provided——i.e., he overbilled——and that Respondent approved, authorized, and/or knew or should have known of the misconduct (as charged in Counts One and Three); and that the Respondent and Dr. Wagner's billing practices with respect to the four JVCs constituted fraudulent, deceptive, or untrue representations related to the practice of a profession (Count Two). The undersigned will begin with a discussion of the facts relating to Count Two. Deceptive Billing Practices In or around August 2009, three individuals——S.J., J.J. (S.J's cousin), and L.J. (S.J's mother)——were involved in an automobile accident. Thereafter, in late 2009 and early 2010, S.J., J.J., and L.J. presented themselves on a number of occasions for chiropractic services at Dr. Wagner's office in Daytona Beach. Roughly one year earlier, patient C.H. was likewise involved in a car accident. C.H. was subsequently referred to Dr. Wagner for chiropractic treatment by her personal injury attorney, Joshua Wagner, who happens to be the son of Dr. Joseph Wagner. It appears from the record that C.H. was treated at Dr. Wagner's clinic on multiple dates. Pursuant to the parties' Joint Prehearing Stipulation, it is undisputed that S.J., J.J., L.J., and C.H. each had personal injury protection (PIP) insurance from Direct General Insurance Company ("DGIC"). PIP insurance coverage allows a medical or chiropractic provider to treat insured persons and then submit a reimbursement claim to the insurance company for the service(s) provided. Beginning with the claims associated with C.H., Respondent has consistently maintained that C.H. was not a joint-venture client, that he had no knowledge of C.H., and that any claim submitted by Dr. Wagner in connection with C.H. was without his knowledge or authorization. The undersigned credits this portion of Respondent's testimony; thus, any bills that relate to C.H. cannot sustain a finding of a deceptive or fraudulent practice. However, the cases of S.J., J.J., and L.J. are another matter. Based upon Respondent's deposition testimony, the undersigned is persuaded that Dr. Wagner, with Respondent's knowledge and authorization, submitted reimbursement claims to DGIC in connection with S.J., J.J., and L.J. that bear the following dates: January 30, 2010 (S.J.); January 30, 2010, and March 13 and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.).3/ While the exact services billed to DGIC varied by JVC and date, the content of each of these claim forms represented unambiguously that the examinations and/or treatments——e.g., a trigger point injection for L.J. on March 27, 2010——were performed by Respondent and no other. This was unquestionably deceptive in light of Respondent's consistent testimony that he never physically conducted medical examinations or treatments in connection with any joint-venture client. Alleged Overbilling In contrast to Count Two, the charges that relate to overbilling (Counts One and Three) cannot be sustained merely by proof that claims for reimbursement——i.e., the claims identified in paragraph 16 above, which Respondent authorized——were submitted for services that Respondent did not perform. Rather, it is incumbent upon Petitioner to demonstrate that the services billed were not performed at all. In this regard, the deposition transcripts of L.J. and S.J., which consist entirely of hearsay, are the only evidence that the billed services were not performed by anyone. While the deposition testimony of L.J. and S.J. is credible, there is a complete absence of non-hearsay evidence as to what procedures or services were never provided to these specific patients during their office visits. All that was proven——based upon Respondent's admissions and supplemented by the hearsay testimony of the JVCs——is that Respondent did not perform the billed services, which, as explained in greater detail in the Conclusions of Law of this Recommended Order, is insufficient to satisfy Petitioner's burden. Ultimate Findings of Fact It is determined, as a matter of ultimate fact, that Respondent engaged in deceptive, untrue, or fraudulent representations in or related to the practice of his profession. It is further determined, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent submitted to a third-party payor a claim for a service or treatment that was not actually provided to a patient. Finally, as a matter of ultimate fact, it is determined that that Petitioner failed to prove that Respondent, in connection with a personal injury protection claim, intentionally submitted a bill or claim for reimbursement for services that were not rendered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Dismissing Counts One and Three of the Corrected Amended Administrative Complaint; Finding that Respondent violated section 456.072(1)(m), Florida Statutes, as charged in Count Two; Suspending Respondent's license to practice chiropractic medicine for a period of one year; Placing Respondent on probation for a period of two years, with conditions deemed appropriate by the Board; and Imposing a fine of $10,000. DONE AND ENTERED this 16th day of March, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 16th day of March, 2012.
Findings Of Fact The parties have stipulated to the facts in this case as follows: The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County. The advertisement was published on September 16, 1987. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center". The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..." Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control". Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. J. STEPHEN MENTON 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 29th day of April, 1991. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive Suite 177 Laguna Niguel, CA. 92677-2040 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated Section 460.413(1)(c), Florida Statutes; and if so, what penalty should be imposed.
Findings Of Fact Respondent, Joseph Forlizzo, is, and has been at all times material hereto, a chiropractor licensed in the State of Florida, having been issued license number CH-0003278. Petitioner, Department of Health, Board of Chiropractic, is the state agency that licenses and has regulatory jurisdiction of chiropractors. Section 20.43, Florida Statutes; Chapter 455, Part II, Florida Statutes; and Chapter 460, Florida Statutes. On September 3, 1996, in the United States District Court for the Middle District of Florida, Case No. 95-132-CR-T-24(E), Respondent was convicted of conspiracy to collect an extension of credit by extortionate means as defined in Title 18, United States Code, Section 891, from Michael Muzio and Wesley Earl Ball by express and implicit threats and acts of violence and other criminal means to cause harm to the person, property, and reputation of said Michael Muzio and Wesley Earl Ball. The conspiracy to commit extortion referred to in the conviction involved the contemplated use of actual or threatened force or violence against the person of another. The crime of which the Respondent was convicted, conspiracy to collect an extension of credit by extortionate means, is a felony. As a result of the subject conviction, Respondent was sentenced to imprisonment for a term of 51 months followed by supervised release for a term of 36 months and ordered to pay restitution of $100,000 to Michael Muzio. The subject conviction has not been overturned or vacated on appeal. Respondent was a co-owner in a business known as American Mobile Imaging (AMI) with Michael Muzio and others. AMI was in the business of providing medical testing or diagnostic services. The medical testing or diagnostic services provided by AMI included the use of a Magnetic Resonance Imaging (MRI) mobile unit. Chiropractic is a healing art. Dr. Butler's credible testimony was that, in his expert opinion, the practice of chiropractic has a foremost and formidable requirement for mental fitness and emotional stability on the part of practitioners. Moreover, Dr. Butler's credible testimony was that the crime of which Joseph Forlizzo was convicted shows a callous disregard for and lack of respect for human life and that respect for human life is the entire premise of health care providers. The crime of which Respondent was convicted is directly related to the practice of chiropractic medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding that Respondent, Joseph Forlizzo, is guilty of conduct described in Section 460.413(1)(c), Florida Statutes, as alleged in the Administrative Complaint; and revoking Respondent's license to practice as a chiropractic physician. DONE AND ENTERED this 15th day of February, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2000. COPIES FURNISHED: James A.G. Davey, Jr., Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Timothy E. Leahy, Esquire Leahy and Associates, P.A. 535 Central Avenue, Suite 300 St. Petersburg, Florida 33701 Eric G. Walker, Executive Director Department of Health Board of Chiropractic 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent violated Subsections 460.413(1)(ff) and 456.072(1)(u), and Section 460.412, Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Dr. Hether was a licensed chiropractic physician within the State of Florida, having been issued license number CH 2601 on or about April 16, 1977. Other than the instant Administrative Complaint, Dr. Hether has had no disciplinary action taken against his license. In April 2003, Dr. Hether had two chiropractic offices, one in Port Orange, Florida, and one in Deland, Florida. On or about April 8, 2003, C.B., a 29-year-old female, presented herself to Dr. Hether's office in Port Orange, Florida, in order to receive chiropractic treatment for injuries she sustained in an automobile accident. C.B. began receiving treatments in the Port Orange Office, but switched her appointments to the Deland office on or about May 8, 2003. The remainder of her treatments was given at the Deland office. Her treatments included chiropractic adjustments and massages. The chiropractic adjustments were performed by Dr. Hether and other physicians who worked for Dr. Hether; however, the majority of the chiropractic adjustments were performed by Dr. Hether. Until C.B.'s visit on June 11, 2003, all the massages had been performed by licensed massage therapists who worked for Dr. Hether. From on or about April 8, 2003, up to June 11, 2003, C.B. received various chiropractic treatments at Dr. Hether's offices without incident. On June 11, 2003, C.B. presented herself to Dr. Hether's office to receive her usual chiropractic treatment, including a massage. Dr. Hether, his son, and another male were in the office. Dr. Hether offered to perform the massage on C.B. because the regular massage therapist was not present, and C.B. accepted. C.B. went into the massage room, undressed to her underwear, and lay face down on the table with a sheet draped over her. Dr. Hether came into the massage room and began to massage C.B. Dr. Hether and C.B. were the only persons in the room during the massage. While C.B. was lying face down, Dr. Hether slipped his hands under C.B.'s underwear on the left side of her buttocks and then placed his hand under her underwear on the right side of her buttocks. At Dr. Hether's instruction, C.B. turned over onto her back. Dr. Hether placed his hands under C.B.'s breast area and rubbed upward towards her cleavage. Dr. Hether then slid his hand down C.B.'s body toward her vaginal area, grabbed a part of C.B.'s vaginal area, and began to make grunting noises as if he were getting sexual pleasure from the touching. While Dr. Hether was touching C.B.'s vaginal area, Chase Hether, Dr. Hether's son and office manager, knocked on the door to the massage room. Dr. Hether briefly stopped the massage to speak to his son. The door was partially open, but Chase Hether could not see inside the massage room. After speaking to his son, Dr. Hether closed the door and walked back to the massage table, where he again placed his hand in C.B.'s vaginal area and slid his fingers back and forth. Dr. Hether then shoved his hand further down C.B.'s panties and repeatedly thumped C.B.'s vaginal area. While Dr. Hether was thumping her vaginal area with one hand, he grabbed C.B.'s ankle with the other hand, while using the full pressure of his body weight on her body. Dr. Hether resumed making the grunting sounds and continued to make the sounds for a while. C.B. had approximately 27 massages at Dr. Hether's offices from the time she began treatment in April 2003 until June 11, 2003. The massage therapists who gave her those massages did not touch C.B.'s pubic area or touch the areas around C.B. breasts. After the massage, C.B. got dressed and went into another room to receive a chiropractic adjustment from Dr. Hether. Dr. Hether gave the chiropractic adjustment without any further inappropriate touching. After he concluded the chiropractic treatment, he asked C.B. personal questions about her living arrangements and occupation. C.B. went into the reception area of the office to leave the building. She saw Chase Hether and another man in the reception area. C.B. did not tell either man what had happened nor did she tell them that she would not be back to Dr. Hether's office for treatment. While Dr. Hether was touching C.B. inappropriately, she did not cry out, tell him to stop, or attempt to leave. When Chase Hether came to the door of the massage room, C.B. did not tell him what Dr. Hether was doing. C.B. did not try to stop the massage, leave Dr. Hether's offices, or tell others at Dr. Hether's office about the inappropriate touching because she was afraid of Dr. Hether and did not know what else Dr. Hether might do to her. She felt like she was a "visitor in her own body" and had no control over what was being done to her. She did not report the incident to the police department because she felt that the police were ineffective. C.B. did not go back to Dr. Hether's offices for treatment after the incident on June 11, 2003. She sought treatment from another chiropractic physician, Dr. Kimberly Watson, whom C.B. saw on June 23, 2003. C.B. told Dr. Watson what had happened to her at Dr. Hether's office. Dr. Watson advised C.B. that she could file a complaint with the Department of Health. C.B. did send a complaint to the Department of Health in June 2003, but she sent it to the wrong address. She got the correct address from Dr. Watson and filed a complaint with the Department of Health in September 2003. A year passed, and she contacted the Department of Health, wanting to know the status of her complaint. C.B. was told to file another complaint, which she did. Dr. Hether's wife, Kathe Hether, testified that she was at Dr. Hether's office the day of the incident and that as C.B. was leaving the office she spoke to C.B. for several minutes concerning her publishing business and that C.B. told her that she was going to another chiropractor that was nearer to her home. Mrs. Hether's testimony is not credible. Her husband of 36 years did not advise her until two months before the final hearing, that an administrative complaint had been filed against him. It is inconceivable that two and one-half years after their conversation, Ms. Hether vividly remembers talking to C.B. when there had been no reason to remember the conversation. Additionally, Ms. Hether's explanation for C.B.'s failure to return to Dr. Hether for treatment because C.B. wanted to go to a chiropractor closer to her home is also not credible. C.B. chose to seek treatment from Dr. Watson, whose office was about the same distance from C.B.'s home as Dr. Hether's office. C.B. also told Dr. Watson about the incident with Dr. Hether, explaining the reason that she discontinued treatment with Dr. Hether. C.B. has not brought a civil action against Dr. Hether for the incident on June 11, 2003. She filed the complaint with the Department so that Dr. Hether would not touch other patients inappropriately.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that James Hether, D.C., violated Subsection 460.413(1)(ff), Florida Statutes, by violating Subsection 456.072(1)(u) and Section 460.412, Florida Statutes; issuing a reprimand; imposing a $2,500 administrative fine; requiring a psychological evaluation by the professional resource network; and placing him on probation for two years, the terms of which would include a practice restriction prohibiting him from treating female patients without another certified health care professional in the room. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2006.
The Issue Whether the license of Respondent should be revoked, annulled, withdrawn or suspended for permitting an unlicensed person to practice cosmetology in the American Beauty Salon owned by Respondent, Dorothy Canfield.
Findings Of Fact An Administrative Complaint was issued on May 31, 1977 against Dorothy Canfield, d/b/a American Beauty Salon charging: That you, said DOROTHY CANFIELD on June 18, 1976 did allow a non-licensed person to practice Cosmetology in your salon; at American Beauty Salon, Atlantic Beach, Florida." Dorothy Canfield, the Respondent and owner of the American Beauty Salon, had intended to take a day off work but was called to return to her shop. When she arrived her receptionist, an unlicensed person, had been practicing cosmetology in the salon. Respondent immediately instructed the receptionist to discontinue work permitted to be done only by licensed cosmetologist and to return to her work as receptionist. When the Petitioner Board made an inspection on June 18, 1976 after receiving reports that an unlicensed person was practicing cosmetology in the salon operated by Respondent, the receptionist, Mrs. Carol Nixon, admitted that she had, in the absence of Respondent, Canfield, and without her knowledge engaged in activities for which she was not licensed to perform. The Hearing Officer finds that the activities of the unlicensed person practicing cosmetology in the salon of Respondent, in her absence were without her knowledge and when she became aware of the violation immediately caused the person to cease working.
Recommendation Dismiss Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of August, 1977. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire LaFace & Baggett, P.A. Post Office Box 1752 Tallahassee, Florida 32302 John H. P. Helms, Esquire 1602 North Third Street Jacksonville, Florida 32250
