Findings Of Fact The Respondent, Peter P. Alongi, is a licensed chiropractic physician, practicing in Fort Lauderdale, Florida. An administrative complaint was filed by the Petitioner, Florida State Board of Chiropractic Examiners, dated December 7, 1978, alleging that the Respondent engaged in deception, misrepresentation or fraud by publishing a certain advertisement. An administrative hearing was requested by the Respondent. Thereafter, a motion to dismiss was filed by the Respondent prior to the formal hearing, which was denied. Respondent Alongi casued the following advertisement to be published in the Fort Lauderdale News in the month of May 1978: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute is presently engaged in what is the most expensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignment and utilizes a screening process called contour analysis. Volunteers are being sought for screening. Contour analysis enables taking a 3 dimensional picture (called moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient sympto- matically and levels of spinal tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasm, muscle imbalance, spinal distortion and scoliosis. This is a Public Service Program for partici- pating volunteers. The doctors are contributing their time, service and facilities for the program. Anyone wishing to be a volunteer may telephone participating doctors directly for information or an appt. Dr. Peter P. Alongi Dr. Larry Burch 2821 E. Commercial Boulevard 200 SE 12 St. Ft. Laud. Ft. Laud. 491-2449 764-0444 Ms. Laura Borys read the foregoing advertisement and, thinking there would be no charge for treatment, made an appointment with Respondent Alongi. Ms. Borys had interpreted the advertisement to mean that if she presented herself as a "research volunteer" there would be no cost to her. Ms. Borys was accompanied to Respondent Alongi's office by Ms. Katherine Leight, a sister-in- law of Ms. Borys. Ms. Leight had told Ms. Borys that she felt the advertisement was soliciting for paying customers, and that she based her view on the reason that she had never seen such an advertisement by any other chiropractor. Ms. Borys would not have made the appointment with Respondent Alongi to participate as a volunteer pursuant to said advertisement if she had know that x-rays and chiropractic treatment would be on a cost basis. Respondent Alongi performed a contour analysis and gave Ms. Borys a photograph of her back. The Respondent analyzed the photograph and advised Ms. Borys that she had a back problem, and that for a fee of $50.00 she could have x-rays taken and would be charged $15.00 per visit for treatment. Upon a close reading of the foregoing advertisement it is not likely that the general public would have been mislead into believing that free treatments or x-rays would be given. Ms. Borys' sister-in-law, Ms. Leight, did not believe the advertisement was inserted for any other reason than to solicit business for the two doctors included in said advertisement. No questions were raised or evidence submitted as to what constituted the "research program" other than the taking of the picture of the back, or whether members of the public were deceived or mislead into thinking that there was in fact a valid program. Both parties submitted proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they are specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the Administrative Complaint be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of July, 1979. COPIES FURNISHED: Paul W. Lambert, Esquire 1311 Executive Center Drive Suite 201, Ellis Building Tallahassee, Florida 32301 Thomas F. Panza, Esquire 2803 East Commercial Boulevard Fort Lauderdale, Florida 3308 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of chiropractic medicine, in violation of section 460.412, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of chiropractic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this proceeding, Dr. Rodriguez was a licensed chiropractor in the State of Florida, having been issued license number CH 9812 on September 17, 2009. Dr. Rodriguez's address of record with the Department is 1840 Northwest 122nd Terrace, Pembroke Pines, Florida 33026. Patient D.H. was a 22-year-old patient of Dr. Rodriguez. She had been referred to Dr. Rodriguez by her mother, also a patient. Patient D.H. was the one who suggested initial treatment with Dr. Rodriguez. She had seen him about six times over a period of two months. On or about June 6, 2012, Patient D.H. presented to Dr. Rodriguez for chiropractic treatment. Dr. Rodriguez began treating Patient D.H. in one of the treatment rooms in his practice. As she was turning over on the examination table, Patient D.H.'s left breast was exposed. Dr. Rodriguez commented on her breast being exposed. Patient D.H. replaced her breast under her tank top. As Dr. Rodriguez continued with his treatment, her breast was again exposed, prompting Dr. Rodriguez to say that Patient D.H. was getting him excited, or words to that effect. Dr. Rodriguez touched both of her breasts with his hands. He then kissed her breasts. Patient D.H. testified that she was in shock because his actions were sudden and caught her off guard. Dr. Rodriguez left the room. Dr. Rodriguez's staff placed Patient D.H. in a massage chair in a common area of the office. After Patient D.H. stated that she still had pain, she was taken into another room for an additional treatment on her shoulder. In the new room, Patient D.H. lay down on the treatment table. After placing some patches on her shoulder, Dr. Rodriguez again touched her breasts. He placed his hand inside her pants and inserted two fingers into her vagina. She testified that she told him to stop. Dr. Rodriguez again told her how she excited him. Patient D.H. later testified that she was in shock and unable to react. Dr. Rodriguez and Patient D.H. made a "pinky promise" not to say anything, and then Dr. Rodriguez washed and dried his hands. He placed a Chinese herbal remedy above her left breast, told her to sleep, and left the room. When he returned, Patient D.H. began crying. Dr. Rodriguez gave her a hug and kissed her on the cheek. While Patient D.H. was in a treatment room with Dr. Rodriguez, he engaged in sexual contact with her which was outside the scope of her medical treatment. Other than as described, Patient D.H. made no complaint to Dr. Rodriguez, nor did she complain to an office staff member. Patient D.H. left Dr. Rodriguez's office and started driving to her cousin's house. She then pulled over and called the police and her mother to tell what had happened. Patient D.H.'s mother testified that she received a phone call from her daughter about 5:00 p.m., saying that Dr. Rodriguez had molested her, and immediately went to meet her. Patient D.H.'s parents took her to the Cooper City district office of the BCSO to report the crime. On June 11, 2012, in conjunction with a criminal investigation by the BCSO, Patient D.H. made a controlled telephone call to Dr. Rodriguez while in the presence of a detective. During the conversation, Dr. Rodriguez said that he did not want to discuss things on the telephone because he could not be sure he was not being recorded, and asked Patient D.H. to come see him at the office. Patient D.H. said she would be uncomfortable seeing him and that is why she had called on the telephone. Their conversation included words to the following effect: Patient D.H.: Do you . . . do you really do this to your other patients? Dr. R.: I don't. That's why I'm . . . I couldn't sleep this weekend. I . . . I . . . I'm exhausted. I'm physically and mentally exhausted. Patient D.H.: But why me? Dr. R.: I don't know. It just happened, hon. That's what I'm telling you, it just, it just happened. Patient D.H.: I just want to know why me? Dr. R.: I don't . . . I don't know . . . I, I just don't know. Um . . . you know, and I wasn't sure because you know, um . . . you know you, you um, when you came about, you showed me your breasts, um . . . . Patient D.H.: It wasn't . . . you know, it was an accident, I wasn't trying to personally . . . . Dr. R.: No, but you know, but when you did the other part, you know, then I thought that that was um. Patient D.H.: What other part are you talking about? Dr. R.: No dear, no, your breasts, and that was an invitation . . . or an open, you know, "here" and for some reason we were talking about stuff, it's a blank to me. I do not remember . . . if you asked me . . . it was just, I do not remember, um, how exactly everything happened, but it just happened. Patient D.H.: Don't you remember . . . don't you remember putting your hand on my breasts and putting your two fingers in my vagina? Do you remember that? Dr. R.: Yes. Patient D.H.: Yes, you do remember that, right? Dr. R.: Hon, I don't even want to, I don't even want to go there. I don't even want to be going there, because I didn't feel comfortable with that at all. Patient D.H.: How, how do you think I feel? I'm not comfortable at all myself. Dr. Rodriguez later engaged the services of a forensic audio engineer who generated an enhanced audio version of the above-described controlled telephone call. During this call, Detective Wernath's voice can be heard in the background, coaching Patient D.H. through portions of the conversation. The criminal investigation also found that a DNA sample from a buccal swab taken from Dr. Rodriguez matched DNA collected from Patient D.H.'s breast. As Mr. Rhodes testified, the chance of a false positive was less than one in 30 billion. Dr. Rodriguez has admitted the sexual activity, while maintaining that his conduct was invited by Patient D.H.'s actions. Specifically, Dr. Rodriguez testified that he believed that Patient D.H. intentionally made her breast "slip out" of her tank top several times, that it was not an accident. He testified that when he told her that he could see her exposed breast, she responded, "Oh, I don't mind." He testified that Patient D.H. was being flirtatious and, by her provocative actions, was encouraging his behavior. Dr. Rodriguez's testimony that he believed Patient D.H. encouraged his sexual misconduct is supported by his statements directly to Patient D.H. on the recorded call, when he thought no one else was listening, and is credible. But regardless of what Dr. Rodriguez may have perceived, or the degree, if any, to which Patient D.H. was complicit in Dr. Rodriguez's sexual misconduct, her involvement would not excuse his actions. A chiropractor is not free to engage in sexual activity with his patient even if the patient encourages or consents to it. There was scant evidence in the record to suggest that Dr. Rodriguez accepts or understands this professional responsibility. Patient D.H.'s testimony as to Dr. Rodriguez's actions was clear and convincing. Her testimony as to his actions is credited and is confirmed by his own statements in the controlled telephone call and at hearing. Respondent's touching of Patient D.H.'s breasts with his hand and mouth and insertion of his fingers into her vagina constituted engaging in sexual activity with a patient and was sexual misconduct in the practice of chiropractic medicine. Patient D.H. engaged in a civil lawsuit against Dr. Rodriguez. She has since executed a release in that case. Dr. Rodriguez has not previously been subject to disciplinary action by the Board. Dr. Rodriguez credibly testified that he has installed video cameras in the treatment rooms to ensure that there will be no further incidents. He noted that the purpose of these cameras was to protect him. Dr. Rodriguez demonstrated little or no remorse, the focus of his spirited testimony being directed towards the provocative conduct of Patient D.H., not his own inappropriate actions. Revocation or suspension of Dr. Rodriguez's professional license would have a great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Chiropractic Medicine, enter a final order finding Dr. Enrique Rodriguez in violation of section 460.412, Florida Statutes; revoking his license to practice chiropractic medicine; and imposing costs of investigation and prosecution. DONE AND ENTERED this 29th day of March, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 29th day of March, 2019.
Findings Of Fact Respondent, Richard Powers, was at all times material hereto a licensed chiropractor in the State of Florida, having been issued license number CH0003372. Respondent has routinely advertised his chiropractic practice in the Palm Beach Post. On July 8, 1984, July 15, 1984, and September 2, 1984, Respondent ran an advertisement in the Palm Beach Post which offered a free examination and which stated that the "usual value of this exam is $80. This includes X-rays if needed." The advertisement did not include the disclaimer mandated by Section 455.24, Florida Statutes. That statute, effective June 12, 1984, required that: In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider ... (such as Respondent) ... the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. By memorandum dated September 30, 1984, the Department of Professional Regulation, Board of Chiropractic (Board), advised all licensees of the aforesaid amendment to section 455.24. Respondent asserts he had no knowledge of the amendment until his receipt of the Board's memorandum in October, 1984, and that he complied, or attempted to comply, with the amendment at all times thereafter. The evidence supports Respondent's assertions. The advertisements of July 8, 1984, and July 15, 1984, were captioned in bold type "ADVANCED APPLIED CHIROPRACTIC," listed Respondent as a diplomate of the National Board of Chiropractic, and concluded in bold type "A STANDARD OF EXCELLENCE." The advertisement of September 2, 1984, touted Respondent's clinic as "Advanced Applied Chiropractic and Comprehensive Pain Center." The generally accepted definition within the medical community of diplomate is an individual who has completed an extensive post graduate program and successfully passed the board's examination. This establishes superior qualifications in the individual's field of practice. Although the National Board of Chiropractic issues diplomate certification to those individuals who pass its examination, its examination is a basic licensing examination which establishes minimal competency, not excellence. Respondent's use of the phrase "Advanced Applied Chiropractic" to describe his clinic implies that he possesses skills superior to the average chiropractor. Respondent has registered the phrase "Advanced Applied Chiropractic" as a fictitious name. Respondent was, on one prior occasion, disciplined by the Board for an advertising violation.
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 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 The issue in this case is whether Respondent, Charles Leroy Mitzelfeld, D.C., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on February 6, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving chiropractic physicians licensed to practice in Florida. Respondent, Charles Leroy Mitzelfeld, D.C., is, and was at the times material to this matter, a physician licensed to practice chiropractic medicine in Florida, having been licensed in Florida since 1985. Dr. Mitzelfeld's license to practice has not been previously disciplined. Dr. Mitzelfeld's Practice. At the times material to this matter, Dr. Mitzelfeld operated Foundation Chiropractic (hereinafter referred to as "Foundation"), a chiropractic clinic located in West Palm Beach, Florida. Foundation employees three individuals, in addition to Dr. Mitzelfeld's wife, daughter, father, and mother.2 It is, and was at the times material to this matter, Dr. Mitzelfeld's practice to open the offices of Foundation between 5:15 a.m. and 6:00 a.m. each day the clinic was open.3 Dr. Mitzelfeld opened the clinic early in order to see patients who needed adjustments prior to reporting to their jobs. Once Dr. Mitzelfeld unlocked the front door at Foundation, the door remained unlocked and open to the public. After Dr. Mitzelfeld unlocked the front door and before staff arrived, whenever anyone arrived at Foundation and opened the front door, a buzzer or bell sounded to announce their arrival. Dr. Mitzelfeld established and maintained an "open- door" policy at Foundation. Pursuant to this policy, the doors to all of the treatment rooms at Foundation remained open at all times and staff were allowed to enter a treatment room at any time. Dr. Mitzelfeld did not as a matter of course, however, have a staff member present whenever he was seeing a female patient. The evidence failed to prove that, even though the front door of Foundation was unlocked at all times relevant to this matter and Dr. Mitzelfeld maintained an open-door policy, Dr. Mitzelfeld could not have from engaged in the conduct described in this Recommended Order. Dr. Mitzelfeld's Treatment of Patient C.H. On or about September 6, 2001 Dr. Mitzelfeld began treating patient C.H. C.H., a female, earned a bachelor's degree in political science in 1992, and was, therefore, in all likelihood in her 30's during the times relevant to this matter. During the period of time that Dr. Mitzelfeld was treating C.H., he was also treating C.H.'s husband.4 From the time that C.H. began coming to Foundation until approximately January of 2002, C.H. was seen by Dr. Mitzelfeld during the afternoon, when staff and other patients were present. Most often, her appointments were at approximately 3:00 p.m. In approximately January 2002 C.H.'s appointment time was moved, at her request, to the early morning, before staff arrived. C.H. began arriving at approximately 6:30 a.m. for treatments and, although on occasion there were one or two individuals in the waiting room, she usually saw no one else at Foundation other than Dr. Mitzelfeld during her appointments. After C.H. began seeing Dr. Mitzelfeld in the early morning, their relationship began to change from that of a purely doctor-patient relationship to a more personal one. Their conversations started to become more personal and, gradually, they became verbally flirtatious. For example, Dr. Mitzelfeld began to tell C.H. that she was pretty and that she looked good in whatever she was wearing. Dr. Mitzelfeld's personal comments were welcomed by C.H. She responded by telling him personal things about her life, telling him that her marriage was "terrible," that her husband no longer slept in the same room with her, and that they no longer had sexual relations. Dr. Mitzelfeld's comments to C.H. continued to become more flirtatious and suggestive. Among other things, he told her that he found her attractive and that he could not understand why her husband did not find her attractive and desirable. He also told her that, if her were married to her, "I would treat you so good and I would definitely be sleeping in the same bed with you and I'd be making love to you every night." Lines 11-14, Page 69, Transcript of June 19, 2003. As C.H. and Dr. Mitzelfeld became verbally flirtatious, C.H. began to perceive that the manner that Dr. Mitzelfeld touched her was no longer just professional, but more personal and intimate, a change she welcomed. The change in their relationship was not unwelcome to C.H. C.H. believed, without having discussed the matter directly with Dr. Mitzelfeld, that they "had a relationship" and that she "was in love with him and [she] thought he was in love with [her]." Lines 22-24, Page 67, Transcript of June 19, 2003. C.H. naively believed that the physical lust they were experiencing, amounted to something more emotionally meaningful. In approximately February 2002 Dr. Mitzelfeld told C.H. that he wanted to give her a hug after her treatment. They hugged and he kissed her on the cheek. After that, they hugged after each visit. Over time, their hugs became more lasting and intimate, with Dr. Mitzelfeld eventually becoming aroused to the point where he had an erection and "he would rub it all over [C.H.]." Lines 11-12, Page 70, Transcript of June 19, 2003. Dr. Mitzelfeld began performing a new treatment on C.H. for her upper back where she held her arms out to the side, he lifted her up from behind, and her body rested against his. Dr. Mitzelfeld would become aroused during these treatments; his penis would become erect.5 The increased intimacy between C.H. and Dr. Mitzelfeld, was not unwelcome to C.H., because". . . it was very obvious we were very attracted to each other and there was chemistry." C.H. was "happy about it. I mean, I was attracted to him so it didn't bother me at all." Lines 14-15, Page 70, Transcript of June 19, 2003. On May 9, 2002, during a prolonged hug, C.H. kissed Dr. Mitzelfeld on the cheek, then quickly on the mouth, and then passionately on the mouth, a kiss which Dr. Mitzelfeld returned. C.H. continued to naively believe that she was in love with Dr. Mitzelfeld and, although he had not said so, that he was in love with her. She took time prior to each visit to look as good as she could, doing her hair, nails, and make-up, and carefully selecting what she would wear, all in an effort to please Dr. Mitzelfeld and further the relationship she believed they had. On May 13, 2002, C.H. saw Dr. Mitzelfeld for the first time after the May 9th kiss. During this visit, Dr. Mitzelfeld told C.H. that they should not let anything like the kiss happen again "because if it does, [my] hands are going to start traveling and [your] clothes are going to come off." C.H.'s next visit was the morning of May 16, 2002. After receiving her adjustment, C.H. and Dr. Mitzelfeld began hugging and kissing passionately. Dr. Mitzelfeld put his hand down C.H.'s jeans and she began to rub his penis through his clothes with her hand. After a while, C.H. told Dr. Mitzelfeld that she "wanted to do something to him" although she did not specify what. Dr. Mitzelfeld took her by the hand and led her into a bathroom, locking the door behind them. Given the circumstances, Dr. Mitzelfeld correctly assumed that what C.H. wanted to do to him was sexual. Once in the bathroom, they continued to hug and kiss while she attempted to pull down his pants so that she could perform fellatio on him. He eventually pulled his pants down for her and C.H. began to fellate him. While she did, Dr. Mitzelfeld told her to "take it deep, baby." C.H. caused Dr. Mitzelfeld to have an orgasm, after which he told her repeatedly how much he had enjoyed it. She told him that next time she would bring whipped cream. Eventually, Dr. Mitzelfeld, having been sexually satisfied, realized the possible consequences of what had happened and told C.H. that what had just happened should not have; and that he had a great marriage and that he loved his wife. Dr. Mitzelfeld became cold and distant. Dr. Mitzelfeld knew that what had happened was unethical. C.H. left Foundation upset and, because of Dr. Mitzelfeld's comments and cold treatment of her, she spoke with a neighbor and her mental health counselor and told both what had happened. Her mental health counselor told her that what had happened was unethical and that she should report it. C.H., however, was not yet realized that Dr. Mitzelfeld did not have deep emotional feelings for her. By the next morning, May 17, 2002, C.H. had recovered from her concern over Dr. Mitzelfeld's reaction the day before and convinced herself that they indeed had a relationship. C.H. naively believed that Dr. Mitzelfeld had to have feelings for her because they had engaged in a sexual act. She decided to surprise him with an unscheduled visit to his office. C.H. dressed in a black negligee which she covered with a denim dress. She entered Foundation at approximately 6:30 a.m. She did not sign in upon arrival,6 which she normally did when she arrived for a scheduled appointment. She had not come to Foundation that morning for any medical treatment. Dr. Mitzelfeld, who was upstairs in his loft-like office, came downstairs to see who had come in and met C.H.. When he asked what she was doing there that morning, she told him she had something to show him, walked up the stairs to his office, taking off her dress as she went and leaving it on the stairs, and waited for him wearing only the negligee and black high- heeled shoes. She intended to engage in sexual intercourse with him. When Dr. Mitzelfeld came into his office and saw C.H. standing there, he told her that they could not do anything like they had done the day before. Dr. Mitzelfeld had realized that what he had done was unethical and he told C.H. so. He also told her that he could be in trouble for the incident, a prophetic comment. Dr. Mitzelfeld also told her that they could not kiss, hug, or have any other sexual contact again. Dismayed and confused, C.H. dressed, as Dr. Mitzelfeld instructed her, and left the Foundation, never to return. Later the same day, Dr. Mitzelfeld discussed C.H. with a colleague, Dr. Robert McLaughlin. Dr. Mitzelfeld asked Dr. McLaughlin for advice about what he should do about a patient, C.H., who had become agitated when he rejected her sexual advances. Dr. McLaughlin correctly advised Dr. Mitzelfeld that he should discontinue any doctor-patient relationship with C.H., an act which Dr. Mitzelfeld should have taken earlier when his relationship with C.H. started to become more than just a doctor-patient relationship.7 Dr. Mitzelfeld did not admit the events found is this Recommended Order to Dr. McLaughlin. Upset, disappointed, and angry about her May 17, 2002, visit with Dr. Mitzelfeld, C.H. reported the foregoing incidents to the Department on May 22, 2002, after finally realizing that her relationship with Dr. Mitzelfeld was based upon lust and not some deeper emotional feeling. The Department's Administrative Complaint and Dr. Mitzelfeld's Request for Hearing. On February 6, 2003, after investigating C.H.'s allegations, the Department filed a one-count Administrative Complaint against Dr. Mitzelfeld before the Board alleging that he had committed "sexual misconduct" in the chiropractic physician-patient relationship, which is prohibited by Section 460.412 and, therefore, that he had violated Section 460.413(1)(ff), which provides that "[v]iolating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto" constitutes a ground for disciplinary action. On or about March 18, 2003, Dr. Mitzelfeld, through counsel, filed a Petition for Formal Proceedings, indicating that he disputed the allegations of fact contained in Count I of the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a). On March 19, 2003, the matter was filed with the Division of Administrative Hearings, with a request that an administrative law judge be assigned the case. The matter was designated DOAH Case No. 03-0946PL and was assigned to the undersigned. C.H.'s Legal Name. At the times relevant to this proceeding and up until May 21, 2003, C.H.'s legal name was S.C.H.H. The "C" in her legal name and the last "H" are the same names in "C.H.," the name that she has gone by during the times material to this case and throughout this proceeding. When sworn in during her deposition in this matter on May 13, 2003, rather than stating that her name was S.C.H.H. she stated that her name was C.H. She did so simply because she has always gone by the name C.H. The evidence failed to prove that, because of her technical error, her testimony in this matter was not believable. On May 21, 2003, C.H.'s name was changed to C.S.L. as a result of her divorce. Throughout this proceeding, including when she was sworn in on June 19, 2003, to testify at the final hearing of this matter, she indicated that her name was C.H. Again, it is concluded that her technical error was insufficient to conclude that her testimony in this matter was not believable. C.H.'s Use of Prescription Medicines. At all times material to this matter, C.H. was seeing a mental health counselor. The evidence failed to prove why C.H. was seeing a mental health counselor. C.H. was prescribed and has taken Wellbutrin, Adderall, and Serzone. She also was prescribed and took Zolof for a period of two months. While these drugs, taken singly or in combination may have serious side effects,8 including hallucinations, the evidence failed to prove that C.H. had any such side effects. While C.H. admitted taking the drugs in question, the evidence failed to prove that she took them during the times at issue in this matter or, if she did, what dosage she took them in. Finally, while the evidence proved that C.H. has suffered from a number of maladies, the evidence failed to prove whether she was suffering from those maladies between September 6, 2001, and the date of C.H.'s testimony at final hearing or that any of her medical problems affected in any way her memory or truthfulness in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Chiropractic Medicine finding that Charles Leroy Mitzelfeld, D.C., has violated Section 460.413(1)(ff), by violating Section 460.412, as alleged in Count 1 of the Administrative Complaint; suspending Dr. Mitzelfeld's license to practice chiropractic medicine for a period of three months from the date the final order becomes final; requiring the payment of a $1,000.00 administrative fine within a reasonable time after the final order is issued; placing Dr. Mitzelfeld's license on probation for a period of two years; requiring that Dr. Mitzelfeld attend ethics courses relating to the practice of chiropractic medicine as it relates to sexual misconduct, as directed by the Board of Chiropractic Medicine; and requiring the presence of a third person during any examination and treatment by Dr. Mitzelfeld of any female patient during his probation and for a period of not less than ten years thereafter. DONE AND ENTERED this 28th day of August, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 August, 2003.
