Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1983.
The Issue At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task 4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis. Dr. Densmore admitted that many doctors order these tests as a general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur." The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response, intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received. Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of 70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 18th day of February, 2002. COPIES FURNISHED: Ken Allan Niebrugge 4785 Barkley Circle No. 22 Fort Myers, Florida 33907 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material here to, Respondent has been a chiropractic physician licensed under the laws of the State of Florida. Respondent placed the following ad, which appeared in the Miami Herald newspaper on Sunday, November 8, 1981, only: DRUGS? (note: A picture of Dr. is on the original document on file HEART PROBLEMS with the Clerk's Office.) HEADACHES Dr. Bob Bacher DIABETES Director HIGH BLOOD PRESSURE SKIN PROBLEMS 15.27 billion dollars spent in drug storeslast year. This does not include other sources, such as hospitals, clinics, etc; How can your lives be normal depending on drugs? To take a pill each day is dependency. Dependency is addiction. Pushed or prescribed you are an addict. Chiropractic can free you from drug dependency. Chiropractic finds the cause of sickness, corrects it, and allows the life within to heal the body. Come talk to us. We will tell you what you can do to get well and then it's up to you. \ALL CASES ACCEPTED REGARDLESS OF ABILITY TO PAY/ \ / We Accept: FREE X-RAYS Workers Compensation FOR MEDICARE PATIENTS Auto Accident Insurance $50-$100 Value When Necessary! Group Health Insurance Individual Health Insurance- Family Plan BACHER CHIROPRACTIC LIFE CENTER 9001 N.E. 2nd AVE. 756-LIFE CALL TODAY (5433) Some persons who have undergone chiropractic treatment and who have also suffered from the conditions listed in Respondent's advertisement have experienced, during the course of that treatment, some improvement in those conditions to the extent that some could reduce the medication taken for those conditions. The conditions listed in the ad encompass broad categories of diseases and include subcategories of those diseases for which a person must take medication in order to live. In a number of the diseased states listed, the medications being taken are not optional but rather are life-saving. The ad fails to distinguish among persons taking a daily multi-vitamin pill, persons requiring medication to remain alive due to some genetic defect, and persons addicted to illegal drugs for recreational purposes. The words "pill," "medication," and "drugs" are interchangeable only sometimes. A person can take a pill each day without being dependent or addicted. The words "dependency" and "addiction" mean the same thing to some medical professionals only. Many kinds of heart problems, headaches, diabetes, high blood pressure, and skin problems have never shown a response to chiropractic care alone, and there is no scientific or medical data showing that chiropractic treatment can curtail or eliminate the use of prescribed medication in all of the listed conditions. The implication of the ad, read in its entirety, is that every person who has the listed conditions can be helped by chiropractic and can be taken off pills/drugs/medication. Chiropractic does not have a high success rate of freeing people from drug dependency. Respondent's advertisement has the ability to endanger the health of the public for two reasons. First, persons may cease taking life-sustaining medication simply because they have gone to a chiropractor. Second, in situations involving true addiction to certain drugs, it is necessary that any attempts by the person addicted to withdraw from use of that drug be made only under the supervision of a medical doctor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of each and every allegation contained within the Administrative Complaint and assessing against him an administrative fine of $1,000 to be paid by a date certain. DONE and RECOMMENDED this 25th day of July, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lawrence M. Malman, Esquire Biscayne Building, Suite 412 19 West Flagler Street Miami, Florida 33130 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint issued October 2, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Falowski was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 5108. Dr. Falowski was first certified in Florida to practice chiropractic medicine in 1986. Dr. Falowski also is certified to administer propriety drugs. At the times material to this proceeding, Dr. Falowski did business as Rainbow Rehabilitation, and his address of record was 4201 North State Road 7, Lauderdale Lakes, Florida 33319. On or about August 25, 2997, Dr. Falowski submitted an application for acupuncture certification to the Department. He paid a fee and was certified to take the acupuncture certification examination. His application reflects that he completed 105 hours of acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in November 1997, but he did not pass the examination. On or about April 15, 1998, Dr. Falowski submitted a second application for acupuncture certification to the Department. He paid a fee and was again certified to take the acupuncture certification examination. His application reflects that he completed acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in May 1998 and attained a passing score. On or about July 7, 1998, the Department mailed an Examination Grade Report to Dr. Falowski, advising him that he had passed the chiropractic certification examination for acupuncture. A Request for Registration Form for the Board of Chiropractic Medicine was included with the Examination Grade Report, and the instructions stated that the form and a check or money order must be returned to the Department within 45 days. The form listed a $100.00 fee for the Chiropractic Acupuncture Certification. There is nothing in the records of the Department indicating that it received the Request for Registration Form or check in the amount of $100.00 from Dr. Falowski, nor do the records reflect that Dr. Falowski has been issued an acupuncture certification.4 On or about December 28, 2005, writing was observed on the window of the Rainbow Rehabilitation office which stated: WE DO PHYSICALS & BLOOD WORK LICENSED ACUPUNCTURE EKG No acupuncture license number was listed on the window. Dr. Falowski intended to perform acupuncture treatments for any member of the public who requested these treatments at Rainbow Rehabilitation.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order Finding that Francis J. Falowski, D.C., offered to practice acupuncture when he was not certified to do so, in violation of Section 460.413(1)(t); Imposing an administrative fine against Dr. Falowski in the amount of $5,000.00; and Placing Dr. Falowski on probation for a period of two years, under such terms and conditions as the Board deems appropriate. DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 20th day of March, 2008.
Findings Of Fact At all times pertinent to the issues involved in this hearing, Respondent was licensed by the State of Florida as a chiropractor under license number CH 0000997, first issued on January 12, 1952. In mid-April, 1983, Karen Surrency, a 35-year old divorced heavy equipment operator, suffering from low back pain resulting from a hip problem, went to Respondent at his office in Ft. Meade, Florida for assistance and treatment of the condition. When she arrived at the Respondent's office, which was located in his home, Respondent and his wife were both there. Shortly thereafter, Respondent's wife went back into the house. Respondent took a 10- minute history from Ms. Surrency in which she explained her physical problem. When the history was completed, Respondent asked her to go into the examining room where, he said, he was going to take x-rays. He advised her to go into the dressing area and disrobe, removing everything, including her underwear. He gave her a hospital gown to put on. Ms. Surrency did not question his request to remove all her clothing. When she came out of the dressing area wearing the hospital gown, Respondent placed her in front of the x-ray unit and told her he could get a better picture if she would throw the gown up over her shoulder. She did this and he placed her at the machine with her back to it, facing him. In the course of doing this, he placed his hand under her right breast, jiggled it, and advised her that her muscle sagged there. After completion of the x-ray, Respondent asked Ms. Surrency to sit on the examining table. He then told her to walk around the room with the robe pulled up over her shoulder so that he could see her posture. During this period, Respondent was seated on a chair observing her and when she asked him why the gown had to be placed up on her shoulder, he replied that he could see her hip and leg better that way. When this was finished, however, Respondent sat in the middle of one side of the table and had her stand between his legs. He then put his arm around her and turned her so that she faced off to one side with her side toward him. In so doing, he touched her breast, through the material of the gown, with his left hand. After this, he told her to lay face down on the examining table and when she did, he adjusted her back with the gown open from the neck down. After completing the spinal adjustment, Respondent indicated he would like to see Ms. Surrency twice a week and set up a second visit for her two days later. When she came for this second visit, Respondent again asked her to disrobe. She asked him if it was necessary to fully disrobe and he indicated it would be better. Once she had done so, wearing a hospital gown again, Respondent had her walk around with the robe up over her shoulders as he had done on the previous visit while he observed her and then told her to do some push-ups. She got down on the floor and complied and when she did the gown, which was open at the back, fell down to her sides and she was bare. Neither at this time nor prior to this visit had Respondent indicated or instructed Ms. Surrency to exercise at home. Once she completed the push ups, Respondent advised her to again lay face down on the examining table and when she did so, he completed another spinal adjustment. While she was still laying face down, he spread her buttocks apart and told her she did not have any hemorrhoids. This struck her as odd since she had not complained to him about any problem of that nature and there was no need for him to do this. In any event, Respondent then told her to turn on to her back. When she did so, Respondent sat on one end of the table facing inward, with one of his legs over each side. This put him in a position of facing the patient. He then told her to slide down closer to him and place her spread legs one over each of his. He told her he was going to massage her muscles which he did by rubbing in a circular motion starting above the pubic hair and working down inside her thighs. At no time, according to Ms. Surrency, did he touch her in the vaginal area. Respondent then, upon completing this procedure, told her to get dressed. Ms. Surrency did not go back to Respondent for any further treatment after this second visit because, in her opinion, she did not believe Respondent should have done the things to her that he did. In the first place, she did not think it was appropriate for him to examine her nude without a witness, preferably a female present. In the second place, on one of the two occasions, while she was getting dressed, though she had not complained about having any difficulty in removing her clothing, Respondent asked her if he could help her with her bra. Ms. Surrency subsequently went to another chiropractor, Dr. Tucker, for the same physical complaints. Dr. Tucker took x-rays of her but she was allowed to wear a robe, her panties, and socks. Dr. Tucker also had her walk but in so doing, she was allowed to wear her uniform pants, her bra, and the hospital gown. Dr. Tucker never asked her to remove all her clothing or to pull the hospital gown up over her shoulders as Respondent did. He also did not touch her breasts or check her for hemorrhoids. He did not perform a massage of the pubic area. In addition to Dr. Tucker, Ms. Surrency also visited a Dr. Haig, also practicing in Ft. Meade, for the same problem. Dr. Haig, who also took x- rays and also had her walk, treated her the same as Dr. Tucker did. Ms. Surrency did not complain either to or about Respondent at the time he did the things to her which offended her as described above nor did she attempt to stop him from doing them while he was doing them. In fact, she has no quarrel with the diagnosis that Respondent made of her condition and his suggested course of treatment which included several subsequent spinal adjustments. In fact, the other two chiropractors to whom she went after leaving Respondent's care suggested the same treatment. Her complaint is more toward the method of examination; the failure to have a witness present and the requirement for nudity in the course of the examination. Ms. Surrency did not actually complain to anyone until some five or six months after leaving Respondent's care. At that time she filed a complaint with the Petitioner, Board of Chiropractic Examiners. She had in the interim, however, called Respondent on the phone on several occasions regarding securing his signature on certain insurance papers and getting a release of her records. On one of these occasions, Respondent asked her why she had stopped coming to see him. Thereafter, when she went to his office to pick up her papers, Respondent refused to give them to her until she went in to talk with him about her alleged complaint. Dr. Tucker was visited by Ms. Surrency, in June, 1983, when she complained of an unusual indentation in her left hip and pain between her shoulder blades. This pain radiated down through the lower back to her leg. On her first visit, she advised Dr. Tucker that she had seen the Respondent prior to that time for two visits but did not want to talk about what had happened. It was only after she had seen Dr. Tucker two or three times that she began to describe her problems with the Respondent and asked if the procedures he had followed were normal. Whenever she would talk of these incidents she would break down and cry. It was the opinion of Dr. Tucker and that of Dr. Walper as well, both qualified chiropractors licensed in Florida, that the procedures followed by Respondent in many respects were outside the boundaries of normal and proper chiropractic treatment. For example, when Dr. Tucker does an x-ray of a female patient, depending upon the area to be photographed, the patient is not required to be totally nude. In a situation such as Ms. Surrency's, the patient would wear a hospital gown and keep her underpants on. In Dr. Tucker's opinion, contrary to that of the Respondent, it is quite possible to get an x-ray of good quality with the patient wearing a gown and nonmetallic underclothing, and has never had a patient completely nude with the gown up over her shoulder. As to requiring the patient to walk, a patient with Ms. Surrency's complaint would do so wearing a gown with her underwear. There is no medical reason for total nudity and for the patient to have a gown up over her shoulder. Since this was a hip problem, it would be necessary to observe the hip but caution is required not to embarrass the patient as was done in this case. Dr. Tucker could see no reason for an examination of the buttocks area as was accomplished by Respondent for the complaints that Ms. Surrency had. Dr. Walper, who has practiced as a chiropractor since 1950 and in Florida since 1976, did not examine Ms. Surrency but did review the report of investigation completed by Petitioner's investigator which included the statements given under oath by the patient. Based on this review, be concluded that Respondent's techniques were totally unacceptable and did not meet community standards. As to the nudity involved in the x-ray, be was of the opinion that it was totally unnecessary because the x-rays will penetrate clothing except metal and there is no reason to require the patient to pull the hospital gown up over her shoulder. Admitting that substantial medical authority indicates that clothing should be removed for x-rays as far as possible, he contends that the operative words here are "as far as possible" and this does not envision the necessity for total nudity inasmuch as the shadow created by something as flimsy as underpants would be inconsequential to an adequate evaluation of the radiographic picture. With regard to the walk Respondent had Ms. Surrency perform, Dr. Walper agrees that it would be appropriate for a patient with Ms. Surrency's problem to be asked to walk so that the physician might observe the gait. However, the technique used here, requiring the patient to walk nude with the gown up over her shoulder, was inappropriate and unnecessary. There was, in his opinion, no need whatever for the patient to be naked. Dr. Walper can also see no medical reason for Respondent to touch the patient's breasts, even though the second touching was done through the gown and to do so would be inappropriate. As to the buttocks examination, this would not be medically necessary for the type of complaint this patient had. It would be appropriate if the patient had complained of hemorrhoids or if it were accomplished during a routine physical. However, Ms. Surrency had not complained of a hemorrhoid problem and had come in with a specific complaint, not for a routine and general physical examination. Walper is unable to understand any reason for requiring the patient to do push-ups. Admittedly there are some exercises to be done for Ms. Surrency's condition after the symptoms have been relieved, but certainly not push-ups and not in the nude during a physical examination. As to the pubic and thigh rubbing accomplished by Respondent when he had Ms. Surrency place her legs over his, this type of touching for this patient's complaint, in his opinion, would be most inappropriate. Dr. Walper indicated, and it is so found, that practice standards for chiropractors are reasonably similar throughout the State of Florida. In his opinion, the treatment afforded Ms. Surrency by Respondent in the incidents set out in the Administrative Complaint, were outside the scope of chiropractic and Respondent did not perform here with reasonable skill or in a manner which would be followed by a reasonably prudent doctor of chiropractic under the circumstances. What Respondent did here, in Dr. Walper's opinion, constitutes sexual impropriety and misconduct. Respondent has been a chiropractor since 1952 when he graduated from the Lincoln Chiropractic College and has practiced in Florida since 1953. He located his practice in Ft. Meade in 1960. Chiropractic education is divided into two schools of thought. One is made up of "mixers" and the other is made up of "straights." Respondent attended a "mixer" school. The difference in his education was that he was taught to (a) take a good case history, (b) treat for any problem found; and (c) treat to cure the problem rather than the symptoms. He defines chiropractic medicine as dealing primarily with the skeletal system, the joints, and adjacent tissues. Respondent recalls the first visit he had from Ms. Surrency and basically confirms her comments regarding it. While he indicates that it is routine for him to require total nudity under the gown on a first x-ray, from that point on, be says, the patient is allowed to keep their underpants on. He requires the patients to remove the clothing so that it does not get into the way of the x-ray and also because he wants to cut down on the strength of the x- ray required to accomplish the picture. Respondent contends that synthetic fibers such as found in women's underwear are metal and require the use of stronger x- ray. There is no evidence, save Respondent's allegations, to support this theory and it is rejected. Respondent denies that when he spread Ms. Surrency's buttocks he was examining the rectum. Instead, he claims, he was palpating the large muscle of the buttocks area during the examination of everything as he was taught. His examining table has a pelvic roll, he says, which would present the buttocks of a patient on her stomach more prominently than would a table used by graduates of a Palmer school of chiropractic medicine. There is a substantial difference between palpating of muscle and the spreading apart of a buttock and the comment which Ms. Surrency made regarding her hemorrhoids supports a finding that he did in fact spread her buttocks since it would be impossible to see hemorrhoids were the buttocks not spread apart. Respondent admits that he may have touched Ms. Surrency's breast and if he commented on it, he claims, it was merely a casual observation of something he saw. He meant nothing by it. As to the requirement that Ms. Surrency walk nude in front of him, he contends he wanted to observe her feet, knees, and shoulders to see how she looked all over. He again wanted to see her walk after he had performed the adjustment to see if the treatment had done any good. He admits having required the patient to pull the gown up over her shoulder contending that it was just some procedure he picked up during his practice. It works for him and as far as he is concerned, that's all that matters. When Ms. Surrency returned to him the second day before the examination he sat with her and discussed what he had found on the x-rays he had taken during the first visit. He told her that her spine was off center and there were five areas in it that required adjustment. He also told her he could not tell her how long it would take to resolve the problem because the numerous variables involved made it impossible for him to accurately predict a course of treatment. He also admits that he had Ms. Surrency place her legs over his as described in her testimony but defends it on the basis that because he suffers from phlebitis and cannot stand long on his legs, this being the end of the day and since he was tired and his leg was hurting, he utilized this procedure so that he could be sufficiently comfortable to apply equal pressure to the area he was massaging. He applied the "goading" technique of accupressure to various areas above and on the pubic bone to get the patient's muscles to relax and to prompt the lymphatic system to start flowing. Respondent contends this method of treatment is a long standing and accepted practice. The massage technique may well be an accepted practice but the method applied here by Respondent in having the nude patient's legs draped over his with her genital area facing him was not. Respondent then had the patient do the push-ups to determine her muscle balance, a factor important in relationship to the adjustment of the spine. This was related to the pain in between the shoulder blades, not for the low back. Respondent's testimony was not based on his actual recollection but instead is primarily his speculation as to what happened based on his normal practice. He does not recall a majority of the events on either day he saw Ms. Surrency. She is quite sure of her testimony. There is little equivocation and even less speculation. On balance, then, it is clear that the story as told by Ms. Surrency is more credible and worthy of belief. Consequently, it is found that her allegations as to the actual occurrences are accurate. Respondent's explanations do not deny the occurrences, but tend to present some self justification for it. In 1977, a Final Order of the Board of Chiropractic revoked Respondent's license to practice in the State of Florida based on an administrative hearing which resulted in findings that Respondent was guilty of unprofessional conduct the circumstances of which we are not concerned with here. An appeals court subsequently sustained the findings of fact but reduced the revocation to a suspension for six months and Respondent's license was subsequently reinstated after he had served the period of suspension.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Respondent, IVAN C. ROSS' license as a chiropractor in the State of Florida, Number CH 0000997, be revoked. RECOMMENDED in Tallahassee, Florida, this 18th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division Administrative Hearings this 18th day of February, 1985. COPIES FURNISHED: Edward Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Douglas H. Smith, Esquire Post Office Box 1145 Lake Alfred, Florida 33850
Findings Of Fact The Respondent is a chiropractic physician who practices in Daytona Beach, Florida, and is licensed by the State Board of Chiropractic Examiners to practice in the State of Florida. The Respondent opened the office where he presently practices in September, 1978. On or about July 10, 1979, Judith M. Matovina telephoned the Respondent's office regarding severe headaches which she had been suffering. She had been referred to the Respondent by a friend, Michael Davis, who was studying to be a chiropractor, and who was also a friend of the Respondent. An appointment was initially made for Thursday, July 12; Ms. Matovina preferred to make an appointment for a time that would not interfere with her job, and an appointment was ultimately made for 10:30 a.m. on Saturday, July 14, 1979. Ms. Matovina arrived at the Respondent's office for her appointment at the scheduled time. She sat in the waiting room for approximately five minutes. Dr. Wagner came out to the waiting room after he treated another patient and introduced himself to Ms. Matovina. He gave her a pamphlet to read regarding the treatment of headaches by chiropractors, and a form to fill out which provided personal background and a description of symptoms. She filled out the form and handed it to the Respondent who escorted her to the examination room. He asked her questions about her headaches and about her personal life. She responded that she did not believe the headaches were tension related. He told her to remove her clothes and put on a gown. He left the examination room. Ms. Matovina removed her bra and blouse, but left her slacks and shoes on. After knocking, the Respondent reentered the examination room. The Respondent thereafter engaged in conduct, a portion of which was legitimate and proper chiropractic examination, treatment and therapy; and a part of which can only be construed as an effort to induce Ms. Matovina to engage in sexual activity with the Respondent. He engaged in conversation about his poor relationship with his wife, his relationships with his girlfriends, and the fact that he had had a vasectomy. Ms. Matovina had not been to a chiropractor before, and she expressed fear as to the nature of some of the manipulations and other treatment which the Respondent performed. He referred to her as "such a baby" in response to her fear. He examined her eyes, and told her that she had pretty blue eyes and that his girlfriends had brown eyes. Ms. Matovina asked him where his receptionist was, and the Respondent responded that he did not have a receptionist on Saturday because that is when he scheduled his pretty patients. During the course of one manipulation in which the Respondent held Ms. Matovina's feet, he told her that she had cute feet. In the course of one manipulation in which the patient stood against the wall with the Respondent's arm around her waist, he told her, "They are playing our song," in response to the music on the office stereo system. He held her hand as if he was going to dance with her. He kissed her twice on the shoulder, moved his hand toward her breast, and brushed his hand across her breast. Several times during the course of the examination, Ms. Matovina said that it would be best for her to leave, but the Respondent kept saying that they should try one more manipulation or therapy treatment. Ms. Matovina protested during the course of much of the treatment, and eventually insisted upon getting dressed and leaving. During the examination, the Respondent on several occasions referred to Ms. Matovina's "pretty blue eyes," to the fact that she was "such a baby," to the fact that he had other girlfriends, and a vasectomy. After she got dressed, the Respondent behaved as though none of these things had happened. Ms. Matovina insisted upon paying for the session at that time rather than the following Monday, when the Respondent wanted to schedule another session. Ms. Matovina then left the office. She was there for approximately two hours. The following week, the Respondent had his office contact Ms. Matovina to schedule further sessions, but she refused to accept or to respond to the phone calls.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed chiropractic physician, holding Florida license number CH 5839. In addition to his chiropractic training, the Respondent has completed a course of study in biomechanics and has received a "Masters of Professional Studies" degree from Lynn University in Human Biomechanical Trauma. He advertised services related to "Human Biomechanical Trauma" to other chiropractic physicians practicing in the same geographic area. On November 29, 2001, a twenty-nine-year-old female (referred to hereinafter as the patient) presented herself to the Respondent's office complaining of back pain of approximately two weeks duration. The patient was a former gymnast with many years of training. Her regular exercise routine included weight lifting, and the onset of her back pain occurred while she was lifting weights. Initially the pain was in the area of her mid-back and during the subsequent weeks had progressed to her lower back, and to her upper back and neck. The patient also had a history of migraine-type headaches unrelated to the weightlifting and for which she had sought previous treatment with limited success from another physician. On November 29, 2001, the Respondent completed a medical history and performed an evaluation of the patient's condition. The Respondent provided treatment and adjustment. During the time the patient received treatment, she removed all clothing but for her underpants, at the Respondent's direction. A robe was provided inside the treatment room for her to wear after undressing and before the treatment was provided. After providing the treatment on November 29, the Respondent referred the patient to another facility for a series of x-rays. On November 30, 2001, the patient returned for additional treatment at which time the Respondent performed an adjustment to the patient's neck and back. After the treatment was completed and the Respondent exited the room, the patient began to dress, at which point the Respondent entered the room holding a digital camera. The patient testified that the Respondent removed her robe, leaving her clad only in her underpants, that the Respondent told her that the photography was a routine office practice, and that he could not continue the treatment unless the photographs were taken. The patient testified that the Respondent was aggressive while the photographs were taken, speaking with a "raised voice" and moving quickly, instructing her on how to pose, and moving her arms and legs into position. The patient testified that during the incident she was scared and in a "dazed state," and that she didn't know how many photos were taken or how much time elapsed during the photo session. She made no attempt to leave the examination room until after the photos were taken. The Respondent denied that he told the patient that the photographic evaluation was a routine office procedure. The Respondent testified that he discussed the photographic evaluation with the patient and that she permitted the photos to be taken. He testified that he both verbally directed and demonstrated by example, the positions in which he sought to photograph the patient. He further testified that some of the positions came from the patient when describing her "activities of daily living." He testified that she participated in the photography willingly and without protest. Other than the Respondent and the patient, no one else was in the room during the time the photographs were taken. The Respondent's offices consisted of a small suite of rooms located in a strip shopping center. Based on the physical structure of the offices described at the hearing, it is unlikely that voices could be raised to the point of "yelling" without others in the office being aware of the situation. There is no evidence that the patient was physically prevented from leaving the office. Although the patient signed a generic release for treatment when she began seeing the Respondent, the patient testified that the release was essentially blank at the time she signed. In addition to the generic consent for treatment form, the Respondent's office had prepared a separate "Consent Agreement Concerning Biomechanic Photographic Evaluation" which provided as follows: Dear Patient: Holistic Healthcare Centers offers Biomechanic Photographic Evaluation for the purpose of specific biomechanic assessment of the patient. The procedure will include some or all of the following: Digital photos of the patient in various positions, movements and activities. These photographs will be taken with the patient partially or completely unclothed, as determined by the physician(s). Processing and analysis of these photographs on computers either on the premises or at another location, to be determined by the physician(s). Reportage to the patient as to the results of the analyses. Restrictions on the use of these photographs include: Photographic data will be kept in password protected locations and will be accessible only by Dr. Scott Baker and Dr. Scott Drizin. Appropriate hard copies of photographs will be kept in the patient's confidential case file, if needed. The photographic data will not be published either in print or electronically without the patient's express written consent. Utilizations of photographs, data and analyses results can be used educationally while protecting the privacy of the patient. I HAVE READ, UNDERSTAND AND CONSENT TO THE ABOVE. Under the conditions indicated, I hereby place myself under your care for those procedures as described above as indicated in your professional judgment. The "Consent Agreement Concerning Biomechanic Photographic Evaluation" provided a space for the signature of the person from whom consent is being sought and for the signature of a witness. The patient did not sign the photographic consent form. At no time did the patient sign any written release specifically allowing the Respondent to take photographs. According to his note handwritten on the "Consent Agreement Concerning Biomechanic Photographic Evaluation," the Respondent became aware at some point that the patient had not signed the photo consent form. A few days after the photos were taken, the patient returned to the Respondent's office and inquired about the photographs. By that time, the digital photo files had been transferred from the camera used to take the photos to a computer located in the Respondent's office. After the patient requested to view the photos, the Respondent went to a computer where the digital photo files were stored. The Respondent and the patient reviewed the photographs for about 45 minutes. During the photo review, the Respondent made comments that could be construed as relating to the patient's posture. According to the patient's testimony, such comments included "you're standing a little to the left on this one and you should be standing more upright on this one" and "see, you're standing crooked, you should be standing straight." During the photo review, the Respondent told the patient that he and his partner, Dr. Scott Baker, were interested in writing a book and pursuing additional medical training. The patient testified that the Respondent may have used the word "biomechanics" during the photo review, but was not certain. After the photos were reviewed, the patient asked for a copy of the digital image files. Initially the Respondent declined to produce the files, but by the end of the appointment, after receiving additional therapeutic treatment and adjustments, the Respondent provided to the patient a disc containing the photo files. According to the patient, the Respondent advised the patient not to show the photographs to anyone. After the patient received a copy of the photo files, she did not again see the Respondent in a therapeutic setting. She cancelled her remaining appointments with the Respondent, obtained her X-rays from the Respondent's practice, and sought treatment elsewhere. After the patient cancelled the appointments, she received at least one call from the Respondent's secretary inquiring as to the reason for the cancellation. During the call, the Respondent spoke to the patient and inquired as to whether there were problems, at which point the patient advised that she would not return to the Respondent for treatment. At the hearing, the Petitioner presented the expert testimony of Dr. Michael Major, a Florida-licensed chiropractic physician. Although Dr. Major appears to be knowledgeable about biomechanics, he has not undertaken any advanced education in biomechanics. Dr. Major testified one of the reasons to use photography in a chiropractic setting would be to observe structural changes that could occur related to treatment. Dr. Major testified that such photos are generally taken from front, side, or rear perspectives, and utilize spinal or anatomical "landmarks" for purposes of comparing pre-treatment and post-treatment conditions. Dr. Major further testified that he has used digital photography in his practice, generally placing subjects in front of a grid-pattern marked on a wall. Dr. Major's grid system also includes a bilateral scale to identify weight-bearing issues. By using the photo of the subject in front of the grid and on the scale, a chiropractic physician is able to show to a photographic subject various spinal or postural conditions. Dr. Major has used this system in marketing services to prospective clients. Dr. Major termed photos taken from positions other than in front of, to the side of, or from behind a patient as "oblique" angle photos. Dr. Majors testified that such photos had very little analytical value because of the difficulty in accurately reproducing at a subsequent date, the angles from which the original photographs were taken, thus making comparison between the sets of photographs difficult. Dr. Major testified that, when taking a later set of photos, where the angle of camera placement relative to the body is different from the original camera placement by only a few degrees, the later photograph would offer little comparative value because the landmarks would not be located appropriately. A review of the photographs in evidence indicates that the patient was photographed in a routine examination room, posed in various positions, and unclothed but for her underpants. At the hearing, Dr. Major reviewed the photos offered into evidence and opined that although some of the photos taken by the Respondent of the patient provided appropriate diagnostic information, others did not. Dr. Major testified where the photos did not contain appropriate diagnostic information, the Respondent violated the applicable standard of care by not utilizing the best techniques in order to isolate planes of motion sufficiently to provide useful information. Dr. Major also testified that the failure to obtain the patient's consent prior to taking photographs was a violation of the applicable standard of care. Dr. Major opined without elaboration that taking the photographs without the patient's consent also constituted sexual misconduct. According to Dr. Major, the failure to have another female present in the room during an exam was not a violation of the applicable standard of care. The Respondent offered evidence related to his use of photography and the development of a "protocol" that he and his partner were creating to document biomechanical evaluations of certain patients. In addition to the Respondent's testimony, the Respondent presented the testimony of Scott M. Baker, D.C., who was in practice with the Respondent at the time of the events at issue. At some point in the mid-1990's, Dr. Baker and the Respondent became interested in continuing their education in biomechanics, and both completed the additional biomechanics training referenced herein. Part of their interests included conducting research to develop a "protocol" for biomechanical evaluation. Part of the protocol included photographic evaluations of patients. The model apparently being followed referenced radiological studies where multiple X-rays from different angles were taken of a patient during diagnostic testing. However, although the Respondent asserted that the photographs were part of the treatment offered to the patient, Dr. Baker testified that the photos were not actually taken for diagnostic purposes. The alleged purpose of the photos was to educate a patient on existing conditions with the ability to demonstrate at a later date, visible progress though the use of comparative photography. Dr. Baker testified that after the Respondent took the photos of the patient, he and the Respondent reviewed the photos and indexed them by reference to anatomical characteristics. Dr. Baker acknowledged that some of the photos "weren't useful," but that it was preferable to err towards taking too many photos rather than too few, and that the intent was to discard those photos that were not useful. The consent form specific to the photographic study also indicates that the photos may be used for educational purposes with appropriate protection of a patient's privacy. Dr. Baker acknowledged that the protocol was in preliminary stages of development and that greater specificity would be required as development continued. Prior to the patient in this case, only one other chiropractic client had been photographed based on the protocol. When the photographs of the patient were taken, the position from which each photo was taken was not recorded. Dr. Baker testified that when subsequent photos were taken for comparative purposes, the photo subject would have to be repositioned based on the earlier photograph, using an anatomical point of reference. No visible grid pattern was present in the room where the patient's photos were taken and no grid is present in the photos taken of the patient by the Respondent. In order to view the photos, the Respondent planned to use a graphics software program called "Paint Shop Pro" which could allow a grid to be superimposed on a photograph. Whether the computer imposition of a grid pattern on a photo taken subsequently would provide specific anatomical references sufficient to compare the photos is unknown. The asserted reason why the patient wore only underpants in the photos was that wearing a bra would alter the center of gravity being measured. The Respondent further testified that wearing a bra could cause a "cutaneous sensory response" that could lead to a "reflex muscle spasm which would alter the center of gravity." The evidence fails to establish why the same reasoning was not applicable to the underpants that the Respondent directed the patient to leave on.
Recommendation Based on 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 Scott Drizin, D.C., is guilty of a failure to practice chiropractic medicine with the level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances, and imposing a fine of $2,500. DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of November, 2005. COPIES FURNISHED: Louis Kwall, Esquire Kwall, Showers, Coleman & Barack, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701
