The Issue The issue is whether Dr. Schlein was properly graded on the November 1986 practical examination for chiropractic. Preliminary matters At the opening of the hearing, the petitioner, Dr. Stuart Schlein, inquired whether a former member of the Florida Board of Chiropractic Examiners, Dr. Posner, could represent him in this proceeding. After inquiring about Dr. Posner's credentials, Dr. Posner was not accepted as a qualified representative, but Dr. Schlein was permitted to consult with Dr. Posner throughout the proceeding to assist in the presentation of Dr. Schlein's evidence. At the hearing, David Paulson, Ph.D., and Robert Samuel Butler, Jr., D.C., testified on behalf of both parties. Petitioner introduced exhibits 1-14, and respondent introduced exhibits 1 and 2.
Findings Of Fact Stuart Schlein, the petitioner, was a candidate during the November 1986 chiropractic examination. He was exempt from Part I (Basic Sciences Examination) and Part II (Clinical Sciences Examination) because he had already passed the National Board of Chiropractic Examiners' examination. The practical examination consists of three portions, one on x-ray interpretation, one on chiropractic technique, and one on physical diagnosis. There was no dispute with respect to the scoring of Dr. Schlein on the x-ray interpretation portion of the exam, on which he received a grade of 74.2 percent. Dr. Schlein's grade on technique was 75.0 and on physical diagnosis was 72.5, for an overall score on the three portions of practical examination of 73.9 percent. Dr. Schlein would have been eligible for registration for licensure as a chiropractor if his overall grade was 75 percent or better on the practical examination. Rule 21D- 11.003(4), (5), Florida Administrative Code. To conduct the technique and physical diagnosis portions of the practical examination, the Department of Professional Regulation hires examiners who have five or more years experience as licensed chiropractors in Florida who have not been disciplined or investigated by the Board. Rule 21D- 11.007(1), Florida Administrative Code. Pairs of examiners question each candidate. There is a standardization training session for examiners which lasts 2-3 hours the morning of the examination. During that training, the examiners learn the scoring scale to be used; candidates are scored on a scale from 1-4, with scores of four being the maximum. Examiners are told to independently evaluate the candidate's performance and are told how to record their answers on a sheet which can be scanned by computer, and are told the different content areas from which they may ask questions of candidates. For example, in the technique examination, there are four sub-areas to be covered, cervical, thoracic, occipital, and soft tissue. The examiner, individually, determines what he wishes to ask candidates from those subject areas. Both examiners' scores on each test are averaged to produce a candidate's final score for each test. The examiners change partners from the morning to afternoon examination sessions. For approximately 30 minutes before the morning or afternoon sessions, the examiners paired for that session may discuss with each other the questions which they intend to ask. To use a legal analogy, this method of testing candidate's practical knowledge is not much different than placing two examining lawyers in a room to question and evaluate a bar applicant, after merely instructing the lawyers to "ask something about evidence, about constitutional law, and about criminal law." (Transcript 137). There is no assurance that the questions posed by the examiners are at a proper level of difficulty to assess minimum qualifications for practice. There is no requirement that a given pair of examiners ask the same questions of their examinees during a morning or afternoon examination session. There is no assurance that the other examiner in the room even knows the answer to a question posed, yet both examiners are required to assign a grade for the candidate's performance on each sub-area. The Department makes a tape recording of the examination of each candidate for review. Dr. Schlein's grades on the technique and diagnosis portions of the practical examination were as follows: TECHNIQUE Examiner I Examiner 4 1. Cervical 3 4 2. Thoracic 3 3 3. Occipital 4 3 4. Soft Tissue 2 2 12 12 16 16 = 75 percent = 75 percent Average score 75 percent DIAGNOSIS Examiner 1 Examiner 4 Case History 3 3 Chiro. Exam. 2 2 Orthopedic 4 4 Neurological 4 3 Laboratory Diagnosis 3 2 Nutrition 2 [examiner failed to assign a grade] 18 14 24 20 = 75 percent = 70 percent Average score 72.5 percent Technique 75 percent Diagnosis 72.5 percent X-Ray 74.2 percent Final Average 73.9 percent Dr. Schlein objects to the grades he received for cervical and occipital on the technique exam and for neurological and nutrition in the diagnosis exam. With respect to the grade for nutrition, the Department of Professional Regulation could not explain why Examiner 4 failed to assign any grade for the candidate's answer with respect to the questions he was asked on nutrition. Dr. Schlein attempted to impeach the explanation given by Examiner 1, Dr. Butler, for the grades assigned on the four portions of the examination Dr. Schlein challenged by introducing portions of text books used in chiropractic schools which tend to support Dr. Schlein's oral answers. While the matter is not free from doubt, Dr. Schlein's text book excerpts have not convinced the Hearing Officer that the grades given are erroneous. Dr. Schlein was not properly graded, however, with respect to the area of nutrition since examiner 4 (who was not called as a witness) failed to assign any grade and the reason for his failure to do so was unexplained.
Recommendation It is RECOMMENDED that Dr. Schlein be granted the opportunity to be reexamined on the practical portion of the chiropractic examination, at no cost to him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June, 1988. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX The following are my rulings on the proposed findings of fact proposed by the petitioner. Rejected as introduction. Covered in paragraph 1. Covered in paragraph 2. Covered in paragraph 5. Covered in paragraph 6. Covered in paragraphs 1 and 5. Rejected because it is not possible to tell what the effect of the failure of Examiner 4 to give a grade on nutrition was, other than to draw the conclusion expressed in paragraph 5 of the Conclusions of Law that the examiner did not completely understand the grading instructions. Rejected for the reasons stated in paragraph 8. The finding that the testimony establishes there is no uniform method for grading examinees is implicitly accepted in paragraph 3, the remainder of the paragraph is rejected as argument. The following are my rulings of findings of fact proposed by the respondent. The Department filed no proposed recommended order. COPIES FURNISHED: WILLIAM O'NEIL, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 STUART SCHLEIN, D. C. 1035 FRANKLING ROAD APARTMENT N-208 MARIETTA, GEORGIA 30667 PAT GUILFORD, EXECUTIVE DIRECTOR BOARD OF CHIROPRACTIC DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what penalty should be imposed?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since September 10, 1980, licensed to practice cosmetology in the State of Florida. Her current license expires June 30, 1992. At all times material hereto, including August 8 and 17, 1990, Respondent has been an employee of the Salon D'Angelo, a cosmetology salon located in Coral Springs, Florida. Lewis Morganstern is an inspector with the Department. On August 8, 1990, Morganstern conducted an inspection of the Salon D'Angelo, including Respondent's work station. During his inspection, Morganstern observed that (a) Respondent did not remove hair from combs and brushes before using them on the next patron; (b) the barbacide Respondent used to sanitize her combs and brushes had hair floating in it; and (c) the drawer in which Respondent stored her combs and brushes also contained her personal belongings. Morganstern warned that these practices were unlawful and therefore should cease. Upon leaving, he advised that he would return to conduct a follow-up inspection. As promised, Morganstern returned to the salon on August 17, 1990. He found the same violations that he had observed during his initial inspection nine days earlier.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Cosmetology enter a final order (1) finding that Respondent committed the violations of law alleged in the instant Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $250.00 for having committed these violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September, 1991. STUART M. LERNER 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 6th day of September, 1991. COPIES FURNISHED: Tracey S. Hartman, Esquire Mark Harris, Qualified Representative Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Kim Raffaelli Salon D'Angelo 4623 North University Drive Coral Springs, Florida 33065 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: On October 26, 1991, Respondent was employed as a nail technician/manicurist at Tropical Nails and Skin (Tropical), a cosmetology salon located in Lauderhill, Florida. At the time, she did not hold a license authorizing her to engage in the practice of cosmetology, or any specialty area thereof, in the State of Florida. Leonard Baldwin is an inspector with the Department of Professional Regulation. On the morning of October 26, 1991, Baldwin conducted an inspection of Tropical. Upon entering the salon, Baldwin observed Respondent at her station applying polish to a customer's nails. Prominently displayed at Respondent's station was a cosmetology license that bore Respondent's name and photograph. The license was forged and actually belonged, not to Respondent, but to E. Sgroi. It had been given to Respondent by a former coworker, who had altered the license by removing Sgroi's name and typing Respondent's name in its place. Respondent had affixed her photograph to the license after the license was given to her. No changes had been made to the address on the license. Shortly after entering the salon, Baldwin went to Respondent's station. He examined the license and asked Respondent if it was hers. She replied in the affirmative. Baldwin suspected otherwise. He therefore took possession of the license. He then left Respondent's station and went to another area of the salon. Approximately ten or fifteen minutes later, after Respondent had finished with her customer and the customer had paid and left the salon, Baldwin again approached Respondent and asked her about the license. This time Respondent acknowledged that the license was not really hers and that she was not licensed by the Department to practice cosmetology. Baldwin then presented to Respondent a Cease and Desist Agreement, which Respondent signed. The agreement, which was also signed by Baldwin, provided as follows: I, Gloria Torres, have been informed by a representative of the Department of Professional Regulation that I am under investigation on allegations that I have engaged in the practice of "Nails" Cosmetology without being a holder of an appropriate license or permit. Without admitting these allegations, I hereby agree to cease and desist from engaging in this activity until and unless properly licensed or permitted. I execute this agreement without receiving any representations in regard to the final disposition of the investigation. Respondent abided by the terms of the Cease and Desist Agreement. She enrolled in classes at the Academy of Beauty Arts and Sciences in Fort Lauderdale, Florida. On or about November 7, 1991, the school issued her a certificate of completion in the speciality area of manicuring/pedicuring/nail extensions. On December 11, 1991, Respondent was licensed by the Board of Cosmetology to practice in this specialty area. She still holds this license. Respondent is presently in a precarious financial situation. She has recently had to bear the cost of her husband's funeral. In addition, she has had other expenses that have depleted her financial resources.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Cosmetology enter a final order (1) finding that Respondent did not violate Section 477.029(1)(f), Florida Statutes, as alleged in the instant Administrative Complaint; (2) dismissing this charge; (3) finding that Respondent violated Section 477.029(1)(a) and (d), Florida Statutes, as alleged in the instant Administrative Complaint; and (4) imposing upon Respondent, for having committed these violations, an administrative fine in the amount of $500.00 ($250.00 for each violation), to be paid in monthly installments of $25.00 the first four months and $50.00 the next eight months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24 day of August, 1992. STUART M. LERNER 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 24 day of August, 1992.
Findings Of Fact Petitioner has applied to be licensed as a cosmetologist by the Board of Cosmetology of the State of Florida. In pursuit of her application she took the practical examination given by the Department of Professional Regulation, in Winter Haven on June 10, 1982. She received a grade of 66.5 on that portion of the examination. A passing grade is 75.0 or above. Petitioner did pass the written portion of the examination. Because the grade for the written portion is not averaged with the grade for the practical exam, it is irrelevant here. Ms. Forchion's only experience or expertise in the field of cosmetology comes from her study in a half-year course given at Orange County Vocational Technical School. Ms. Forchion contests the following grades received on the indicated portions of the practical examination: Shampooing 3.0 of a maximum 5.0 Permanent waving 12.0 of a maximum 20.0 Bleaching 11.0 of a maximum 20.0 Tinting 13.5 of a maximum 15.0 At the final hearing Ms. Forchion testified that she performed all the procedures properly for each of the areas examined. She did not however, know what the grading criteria to be used by the examiners were. For this reason she was unable to say that her performance met the standards established by the Board of Cosmetology for passing grades. Ms. Forchion's only standards for judging her own work came from her instruction at school. Respondent presented testimony from two of the examiners who were present at the time and place of Petitioner's examination. They had no recollection of Petitioner's performance on the practical exam and therefore were unable to provide testimony about the adequacy or inadequacy of her performance. During the shampooing portion of the examination, there was a deficiency in water pressure. The individual examination stations are apparently supplied by a common water main. When all of the examinees attempted to use water at the same time, the supply was inadequate. The Department of Professional Regulation employee supervising the examination asked the examinees to turn their water off in order to allow the pressure to return. This was unnerving to Petitioner because the examination was timed. In spite of the paucity of pressure she was able to complete the shampooing to her satisfaction and she did not claim that the lack of water resulted in an unacceptable performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Cosmetology enter a Final Order denying the application of Shirley J. Forchion for licensure as a cosmetologist because she failed to successfully pass the practical portion of the cosmetology examination as required by Section 477.019(1)(c), Florida Statutes (1981). DONE and RECOMMENDED this 6th day of December, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 6th day of December, 1982. COPIES FURNISHED: Shirley J. Forchion 3000 Orange Court Apartment 85 Orlando, Florida 32805 M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Suite 1601 Tallahassee, Florida 32301 Myrtle Aase, Executive Director Florida Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION SHIRLEY J. FORCHION, Petitioner, vs. CASE NO. 82-2352 DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY, Respondent. /
The Issue Respondent is charged, pursuant to Count One with a violation of Section 459.015(1)(n), (1985), now Section 459.015(1)(p), F.S., by failing to keep written medical records justifying the course of treatment of the patient, including but not limited to patient histories, examination results, and test results; pursuant to Count Two with a violation of Section 459.015(1)(t), F.S. (1985), now Section 459.015(1)(y), F.S. by gross or repeated malpractice or the failure to practice osteopathic medicine with that level of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar osteopathic physician under similar conditions and circumstances; pursuant to Count Three, with a violation of Section 459.015(1)(l), F.S. (1985), now Section 459.015(1)(n), F.S. by making deceptive, untrue or fraudulent representations in the practice of osteopathic medicine; pursuant to Count Four, with a violation of Section 459.015(1)(o), F.S. (1985), now Section 459.015(1)(r), F.S. by exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include but not be to limited to the promoting or selling of services, goods, appliances or drugs.
Findings Of Fact At all times material, Respondent was licensed as an osteopathic physician in the State of Florida having been issued License No. OS 0003592. Respondent graduated from Kirksville College of Osteopathic Medicine and Surgery and completed a twelve month rotating internship at Suncoast Hospital in Largo, Florida in 1975. He then entered practice in Lake Park at his present address, 310 U.S. Highway One, Lake Park, Florida 33403. From on or about July 22, 1985 until on or about November 27, 1985 Respondent rendered medical care and treatment to patient Margaret Malkemus, for a variety of complaints, including but not limited to hypertension, anxiety, depression, and hair loss. This disciplinary action arises out of a mineral hair analysis test performed on Mrs. Malkemus and her treatment with chelation therapy. Ultimately, Ms. Malkemus terminated her chelation treatments after completing only 4 of the 5 treatments recommended by Respondent. Mrs. Malkemus and her husband, Charles, initiated complaints to the Department of Professional Regulation only after Medicare declined to reimburse them $65.00 per treatment for the four chelation treatments she received from Respondent. Christie J. Dietert, the Department of Professional Regulation Investigator who testified, felt her investigation had ruled out a charge of experimentation and did not pursue further investigation. Upon the testimony of Respondent, Dr. Birzon, Dr. Baird, and Dr. Rudolph, it is found that although chelation therapy is not an ordinary and customary therapy, chelation therapy for heavy metal toxicity and for cardiovascular problems is used by a respectable and significant minority of physicians similar to Respondent. (See Findings of Fact 23-24) Dr. Birzon and Dr. Baird are both Florida-licensed osteopathic physicians. Dr. Birzon is not a proponent of such treatment and has little training in chelation therapy of any kind, but he is familiar with its use by respected colleagues. Dr. Baird is trained in various types of chelation therapy and uses it regularly in his practice. In his opinion, upon review of the patient's chart, laboratory reports, and the applicable superbills, he would probably have given her chelation therapy for her cardiovascular problems. He also felt that chelation therapy was the only therapy that would address all her problems at the point in time Respondent administered it, after unsuccessfully trying other methods for each complaint. Upon direct evidence adduced at formal hearing, and upon authority of the findings of fact adopted in toto in the Final Order of Department of Professional Regulation v. Roehm, DOAH Case No. 86-2868 (Final Order entered by the Board of Medical Examiners October 13, 1988), it is clear that a respectable minority of physicians similar to Respondent also use hair mineral analysis as a diagnostic device, and that while controversial, hair mineral analysis is not experimental when used as part of the constellation of diagnostic tools available to modern science, nor is its utilization as a screening device a departure from that level of care, skill, and treatment required of a reasonably prudent similar practitioner in like circumstances. Respondent participates in an average of one hundred fifty hours per year in continuing education within the field of osteopathic medicine. Although not board-certified in osteopathy, he is a member of many associations, including the American Academy of Medical Preventives and the American Academy of Medical Advancement. Since 1976, hair loss has been of special interest to Respondent and he has residency training in ear, nose and throat, and in facial plastic surgery. When Respondent became active in the American Academy of Medical Advancement, he participated in its program pertaining to hair analysis and the interpretation of hair analysis reports. Respondent learned of chelation therapy starting in osteopathic medicine school and has had actual experience with it since 1976. Respondent has attended educational meetings at the rate of approximately one per year regarding EDTA and chelation therapy. On July 22, 1985, Mrs. Malkemus presented at the Respondent's office with symptoms of nervousness and hair loss. She told Respondent that she had previously seen Dr. Crittendon and Dr. Marchetto, both with complaints of hair loss. Both doctors had advised her that there was nothing that could be done for her hair loss, but Mrs. Malkemus had seen and talked with a patient of Respondent's who had had good results from Respondent's treatment for hair loss, and Mrs. Malkemus wanted to see what Respondent could do for her. Upon the credible portions of the testimony of both Respondent and Mrs. Malkemus, it is found that Respondent performed only a cursory physical examination of Mrs. Malkemus on her first visit. Respondent testified, and it is accepted, that it is his routine to examine a patient on the first visit and only note abnormal findings, not normal ones. He normally does listen to the heart, palpate the abdomen, and do a brief neurological test. If he did these on Mrs. Malkemus, they were not recorded. The fact that Respondent cannot recall with certainty if these examinations were performed and his notes cannot assist him recall this information demonstrate a significant flaw in his notes. With regard to Mrs. Malkemus' first visit, an SMAC-26, a CBC, urinalysis, and mineral hair analysis were noted by Respondent as future tests to be performed as part of a plan for reaching a firm diagnosis of her problems and to rule out metabolic dysfunction as their cause. All tests except the hair mineral analysis were performed on her third visit, August 27, 1985, and were paid for in advance. At the same time, a thyroid test was done. Hair was removed for the hair mineral analysis on September 6, 1985. Respondent's first examination of Mrs. Malkemus was cursory, but he examined her frequently with different degrees of thoroughness on several occasions between July 22, 1985 and November 26, 1985. Respondent generally recorded only significant positive or negative findings. Frequently, the only part of the physical examination or office visit recorded in Respondent's notes was weight, blood pressure, and symptomatology. However, this information was fleshed-out on occasion with a listing on the superbills of diagnoses, and of prescriptions and injections given. Unfortunately, sometimes the dates on the superbills and the dates on the chart/notes do not dove-tail. On 9/26/85 Respondent's notes reflect the first diagnosis of hair loss and anxiety. On several occasions, Respondent also treated Mrs. Malkemus, as set forth infra. At their initial consultation, Respondent took only a brief history because Mrs. Malkemus informed him of her prior medical history and promised availability of medical records from the prior treating physicians. However, the brief history that was taken included the fact that Mrs. Malkemus had major surgery at a prior unknown date and a pap smear eight months before her first visit to Respondent. The Respondent also noted that Mrs. Malkemus smoked two packages of cigarettes a day and drank alcohol occasionally. He further noted that she was being treated for high blood pressure (hypertension) by Dr. Marchetto. Respondent requested that the patient sign a release for her medical records from these other doctors, which she did. Nonetheless, it was agreed between them at the first visit that Mrs. Malkemus would personally obtain her prior medical records and bring them to Respondent rather than his having to send for them. However, thereafter, she did not obtain them because, by her own testimony, she felt she did not have the time and because she unilaterally decided it was not necessary to do so. Over the course of treatment, Respondent discovered that Mrs. Malkemus drank beer, if not excessively, at least considerably, during the period he was treating her. She was also overweight and very sensitive about her hair loss. She wore wigs and hairpieces at all times, 24 hours a day, even in bed. Beyond recording her weight on each visit, Respondent did not specifically record these matters in his notes, but he did address them in discussions with Mrs. Malkemus. With regard to obtaining her medical records and as set out infra, Mrs. Malkemus was not a very cooperative patient. From observation of their candor and demeanor while testifying, as well as by assessment of the substance of their testimony, it appears that Mr. and Mrs. Malkemus were chronic "doctor shoppers" and "treatment shoppers" but were not fastidious about following medical directions. One or the other frequently called Respondent's office for one reason or another and the Respondent's notes on Mrs. Malkemus reveal he refused to advise her by telephone until she came into the office to complete the laboratory tests for diagnostic purposes. Contrary to being exploitative, the inference therefrom must be that he declined to treat or advise her until conservative diagnostic tests were performed. Although the Respondent's medical notes on this patient do not reflect multiple discussions with her, as such, they do support his testimony that he reviewed laboratory results with her and warned her about drinking alcohol while on certain medications. Also, upon the credible portions of Mr. and Mrs. Malkemus' testimony and that of Respondent, it is concluded that Respondent spent considerable time discussing symptoms, possible treatments, and probable effects with Mr. and Mrs. Malkemus prior to suggesting chelation therapy. Respondent instructed Mrs. Malkemus that the constant wearing of a wig, excessive use of alcohol and tobacco, and poor circulation contributed to hair loss. He contacted the University of Florida to rule out the possibility that one of her hypertensive medications was contributing to hair loss. He advised her to leave the wigs off and buy a vibrator to massage her scalp to improve circulation. He prescribed a nutritional weight loss diet, and suggested she exercise by walking. All of these suggestions constitute conservative standard treatment for high blood pressure, obesity, circulatory problems, and hair loss. He also prescribed vitamins, minerals, and a diuretic. He prescribed Kenolog to stimulate hair growth. Neither of these treatments was shown to be clearly contrary to prevailing standards of care for this type of patient. Mrs. Malkemus did basically what she wanted and continued to complain of hair loss and anxiety. The patient's blood pressure was checked at each visit and indicated that even with medication, her blood pressure remained at the high end of the normal range. Respondent changed blood pressure medications with good results. The only faults with this procedure found by Dr. Birzon was that the prior doctors' records should have been obtained by Respondent directly, or he should have refused to treat the patient; not having the prior records, Respondent should have been more meticulous in diagnosing hypertension in the first place and in recording it; and he should have recorded his test results and diagnosis instead of just recording the medications. Medications should also have been recorded as to amount, strength, and duration, instead of as they were recorded, merely by name. The patient presented at almost every office visit with symptoms of extreme nervousness, and/or anxiety. Respondent tried to refer her to a psychiatrist; she would have none of it. He prescribed tranquilizers and antidepressants. On one occasion, he prescribed lithium. No fault or failure of the standard of care was linked to these treatments, even though Respondent is not a psychiatrist, but his failure to record medications properly and his failure to record a specific diagnosis which would support use of the lithium was proven. Mr. Malkemus flushed the lithium tablets down the toilet because he did not want his wife taking something for "crazy people." Subsequent to all the tests and trials outlined above, Respondent provided Mrs. Malkemus with a "patient's copy" of the hair mineral analysis performed by Doctor's Data Inc., a reputable hair mineral analysis laboratory. Despite some belligerent contrary assertions by Mr. Malkemus, Mrs. Malkemus' testimony, Respondent's testimony, the hair mineral analysis printout, the superbills, and the Respondent's notes on this patient are all consistent that Respondent never diagnosed Mrs. Malkemus as having "heavy metal poisoning" or "mercury poisoning." The hair mineral analysis showed a mild degree of elevation of copper and mercury, each within 1 or 2 standard deviations of normal on the heavy metals section. There was also a mild elevation of cadmium. The mercury level was within the normal range of the vast majority of the population. Upon the basis of his education, training, and experience, this hair mineral analysis, and all the foregoing tests, plus his examinations and observations of, and discussions with, Mrs. Malkemus on 7/22/85, 8/1/85, 8/27/85, 8/30/85, (when he successfully surgically removed a lesion from her leg), 9/6/85, 9/12/85, 9/26/85, and 9/30/85, Respondent diagnosed Mrs. Malkemus as having "heavy metal toxicity" and "hypertension." He did not, however, record the diagnosis of hypertension anywhere in his records until it was first placed on the superbill for 11/5/85, and the dual diagnosis of hypertension and heavy metal toxicity is first recorded on the superbill for 11/12/85. Thereafter, the dual diagnoses appear on each superbill. During her testimony, Mrs. Malkemus first "guessed" that Respondent had told her she had mercury poisoning, lead poisoning, or heavy metal poisoning, but upon further inquiry, she could recall very few specifics about Respondent's review of her tests with her or his statements to her. Omitting repetitions and digressions in her testimony, it is found that Mrs. Malkemus' testimony concerning Respondent's representations can be summed up as follows: Respondent had represented to her that there was mercury in her hair and in the hair analysis, that the degree of mercury "wasn't bad," that her heavy metals were light and not serious, that chelation therapy would help but not that it would take all the mercury out. Respondent related to her that the chelation therapy might bring down her high blood pressure. He told her he did not know why she was losing her hair but the chelation therapy might help her. He only used the word "poison" in a phrase like, "you need to get the poison out of your system." Mr. and Mrs. Malkemus both agree that they were given a copy of the laboratory blood tests and the hair mineral analysis printout to take home and review outside Respondent's presence after Respondent discussed the test results with Mrs. Malkemus. Mrs. Malkemus also got an independent opinion from Dr. Marchetto before submitting to Respondent's chelation therapy. Despite all of the foregoing, Mr. and Mrs. Malkemus came to the conclusion that Respondent's diagnosis of "heavy metal toxicity" equated directly with "heavy metal poisoning". The consensus of the expert testimony is that these terms are not synonymous and that the standard of treatment for them is not the same. Heavy trace metal toxicity is similar to a chronic chemical change but is not an acute poisoning. Such toxicity is subacute and subclinical, whereas mercury poisoning or other heavy metal poisoning or heavy metal intoxication is a medical emergency, requiring more extensive testing in order to discover it and requiring different chelating formulas or other treatment than Respondent used here. Mrs. Malkemus asserted that she alone decided that something should be done about the mercury in her system. Respondent recommended a course of five chelation treatments and intended to repeat the battery of standard tests afterwards to determine the treatment's effectiveness. Notwithstanding the testimony of Mark Montgomery Ph.D. and Dr. Birzon D.O., there is competent substantial evidence to show that Mrs. Malkemus was an acceptable candidate for the type of chelation therapy Respondent administered and that although she was the first patient treated by Respondent for mercury toxicity, he could have had a reasonable belief that his method of chelation would improve circulation for treatment of hair loss, would reduce blood pressure so as to eventually reduce or eliminate medication, and possibly would provide some relief for Mrs. Malkemus' other complaints. Dr. Birzon conceded that a low level of mercury could be causing a problem for a patient even if it did not hit the level of "heavy metal poisoning" or "toxicity." See also Dr. Baird's view, Finding of Fact 5. supra. Respondent uses two chelation therapy formulas. Both formulas utilize EDTA; only one uses Heperin. Dr. Birzon testified that the formula utilizing Heperin could have been dangerous to Mrs. Malkemus, given her cardiovascular problems, since it is a blood thinner. Respondent's records are clearly inadequate because they do not show which formula was used on Mrs. Malkemus, but there is likewise no clear evidence Mrs. Malkemus was ever chelated with Heperin. Respondent's formulas are in accord with the recommendations of the American Academy of Medical Preventatives. Mark Montgomery, Ph.D., conceded that either formula posed little or no risk to this patient and might have actually provided some benefit, albeit a placebo effect. The complaints associated with this therapy by the Malkemuses, i.e. that the veins in Mrs. Malkemus' face blew-up, her breasts dropped, her arms got thin, and she lost weight were not clinically documented because Mrs. Malkemus did not report them to Respondent. Also, no witness could convincingly relate these unreported complaints to the Respondent's chelation therapy, and based upon the modicum of testimony that such symptoms beyond the weight loss could not result from this chelation therapy and having observed the candor and demeanor of the Malkemuses while testifying, the undersigned concludes that these foregoing complaints were subjective. However, Mrs. Malkemus' complaints of foot and leg cramps were associated with the chelation therapy and were reasonably treated by the Respondent when she reported them to him. Respondent failed to keep written medical records justifying the course of treatment of Mrs. Malkemus. Respondent is not guilty of gross or repeated malpractice or failure to practice osteopathic medicine within that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician under similar conditions and circumstances. Respondent made no deceptive, untrue, or fraudulent representations in the practice of osteopathic medicine. Respondent did not exercise influence on his patient or client to exploit her for his own financial gain or that of another.
Recommendation The Board of Osteopathic Medical Examiners enter a final order dismissing Counts II, III, and IV of the Amended Administrative Complaint, finding Respondent guilty of Count I thereof in that he violated Section 459.015(1)(n) F.S., reprimanding Respondent for the sole violation, and imposing a probationary period of one year, the probation to be reduced in the event Respondent demonstrates to the Board satisfactory completion of courses in osteopathic record-keeping, the courses to be selected and specified by the Board in its final order. DONE and RECOMMENDED this 13th day of April, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings 13th day of April, 1989. APPENDIX The following constitute specific rulings pursuant to Section 120.59(2), F.S. upon the parties' respective Proposed Findings of Fact (PFOF). Petitioner's Proposed Findings of Fact At the outset, it must be observed that only Petitioner's proposals 19 and 22 reference any part of the record at all and therefore are subject to rejection for that reason alone. 1, 2, 5, 6, 7, 8, 15, 16, 17, 18 and 26 are accepted. 3 is accepted except to the extent not supported by the greater weight of the credible competent substantial evidence of record as a whole. 4, 9, and 11, are rejected as not supported by the greater weight of the credible competent substantial evidence of record as a whole; see Findings of Fact 10, 18-23. 10 is accepted but not adopted as stated because as stated it is misleading and out of context. 12 This is not alleged to be experimental medicine. The proposal is accepted in part and rejected in part as subordinate and unnecessary to the facts as found. Clause one of 13 is rejected as not supported by the credible competent substantial evidence as a whole. Clause two of 13 is rejected as subordinate to the facts as found and as irrelevant in that lack of informed consent was not alleged in the amended administrative complaint. 14 is accepted in part. The remainder is rejected as not supported by the credible competent substantial evidence as a whole. 19 is rejected as subordinate and unnecessary to the facts as found. 20, 21, 22, 25, 27 and 28, are rejected as cumulative or subordinate and unnecessary to the facts as found. is accepted but immaterial since this case involves trace heavy metal toxicity. is rejected in part as not supported by the greater weight of the credible competent substantial evidence of record as a whole, and in part as subordinate and unnecessary to the facts as found, and in part as mere recitation of unreconciled testimony. 29, 30, and 32 are rejected as mere recitations of testimony. 31 is rejected as mere legal argument. 33 is rejected as a mere recitation of testimony and a reiteration of an objection already ruled upon within the record. See introductory material to this Recommended Order. Respondent's Proposed Findings of Fact 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 18, 21, 24, 25 and 27 are accepted except where cumulative or subordinate or unnecessary to the facts as found. Legal argument therein is also rejected on that ground. 11 is accepted in part but clearly modified to conform to the greater weight of the credible competent substantial evidence of record as a whole. 13 is accepted in substance but is otherwise rejected as legal argument and mere recitation of testimony as opposed to a proposed material fact. 14, Rejected as not supported by the greater weight of the credible competent substantial evidence of record as a whole and as mere recitation of testimony and as legal argument. Moreover, many of the statements attributed to Dr. Birzon are out of context for Dr. Birzon specifically testified that a review of the superbills and other records presented him at hearing would not have modified his opinion on lack of record justification and that the superbill diagnoses did not always conform to the chart/notes. See Finding of Fact 11. and 17 are accepted except where cumulative, subordinate or unnecessary to the facts as found. The legal argument in the footnotes are rejected on that ground. is rejected as without record citation and as subordinate and unnecessary to the facts as found. 19, 20, and 26 are rejected as cumulative, subordinate or unnecessary to the facts as found. 22 is accepted in part. The remainder is rejected as cumulative, subordinate or unnecessary to the facts as found. 23, Rejected as mere legal argument upon objections already ruled upon within the record. Dr. Birzon's testimony has been weighed within the latitude of Wright v. Schulte, 441 So.2d 660 (Fla. .2d DCA 1983) and Sykes v. Seaboard Coastline Railroad Co. 429 So.3d 1216 (Fla. 1st DCA 1983) and is reflected appropriately within the facts as found. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire One Datran Center - Suite 1409 9100 Dadeland Boulevard Miami, Florida 33156 Barbara W. Sonneborn, Esquire 1615 Forum Place, Suite 300 West Palm Beach, Florida 33401 Lawrence U. L. Chandler Suite 800 105 So. Narcissus Avenue West Palm Beach, Florida 33401 Rod Presnell Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Respondent Nancy Moss' cosmetology instructor's license should be suspended or revoked, or whether other disciplinary action should be taken by Petitioner against Respondent for alleged violation of Section 477.025(1), Florida Statutes (1980 Supplement), and Section 477.028(1)(b), Florida Statutes (1979).
Findings Of Fact On May 28, 1981 Petitioner Department of Professional Regulation, Board of Cosmetology filed an Administrative Complaint seeking to suspend or revoke or take other disciplinary action against Respondent Nancy Moss as licensee and against her license as a cosmetology instructor. The complaint charged Respondent Moss with three (3) counts of misconduct for holding herself out as a cosmetologist and a cosmetology instructor and for operating a cosmetology salon without being duly licensed. Respondent holds an inactive cosmetology instructor's license #1C 0083468. The inactive receipt was dated July 31, 1980 and expired June 30, 1981 (Petitioner's Exhibit 1). Respondent was the owner and operator of the American Hairstyling Academy, a barber school duly licensed by the State Board of Independent Post- Secondary Vocational, Technical, Trade and Business Schools during the time pertinent to this hearing. The school ceased operation on July 1, 1981. The Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools, a witness for Petitioner, made an official visit to the American Hairstyling Academy on January 21, 1981. He saw a woman sitting in one (1) of the six (6) or seven (7) chairs in the facility with rollers in her hair and saw Respondent Moss performing a service on the woman's hair. After the Director had identified himself, Respondent gave him the American Hairstyling Academy school records to examine and then proceeded to complete her work on the woman's hair. The Director noticed a room with clothes hanging on racks and trinkets in a counter with a sign, "Boutique," near the door. The room had been previously designated as a classroom for the barber school. Before the Director left, one (1) other person entered the premises. (Transcript, pages 12 through 34.) The Supervisor I, Office of Investigative Services, Jacksonville, Region II, made an appointment for a shampoo and set with Respondent Moss on February 4, 1981 at the American Hairstyling Academy. She appeared at the designated time, and Moss performed the shampoo and set. The Supervisor saw a room in which clothes were hanging and saw an area beyond that room which was separated with a cloth curtain. Before the Supervisor left, one (1) other person entered the premises. The Supervisor paid for the hair service and left the school. (Transcript, pages 34 through 41.) An investigator for Petitioner saw two (2) women at the academy, one having her hair serviced and one (1) waiting for Moss. The investigator was told by Respondent that teaching was done at the school and that there were two students enrolled, but no student records were produced for her to examine. She saw no blackboards or what she recognized as a classroom. (Transcript, pages 41 through 51.) A witness for Respondent had his hair washed, conditioned and cut many times in Respondent's barber school by students. He has had the same service done by the Jacksonville Barber College. (Transcript, pages 62 through 67.) A former student stated that she attended the American Hairstyling Academy for two (2) months, and Respondent Moss supervised the work done by the students. She attended classes with five (5) other students in a classroom at the American Hairstyling Academy and checked out books from the library, but she did not complete the course. (Transcript, pages 67 through 71.) Respondent called another witness who had had students at the barber school work on her hair on approximately ten (10) different occasions, but Respondent Moss did not work on her hair. (Transcript, pages 71 through 74.) The Hearing Officer finds that the licensed barber school owned and operated by Respondent Moss prior to July 1, 1981 had a few students, six (6) or seven (7) chairs, a small area that was used by students and Respondent for instruction and a minimal library. The testimony and evidence presented by both parties show that Respondent Moss was a practicing barber in a licensed barber school. Her acts could also be classified as practicing cosmetology although she said she practiced barbering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondent Nancy Moss be dismissed. DONE and ORDERED this 4th day of November, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 4th day of November, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stanley B. Gelman, Esquire 207 Washington Street Jacksonville, Florida 32202 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner, Gary Cook, should have received a passing score on the Barber Practical Examination taken by him in November 1996.
Findings Of Fact On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination (hereinafter referred to as the "Exam"). The Exam was scored by two examiners: Geri Scott and Don Gibson. The Bureau of Testing of Respondent, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") subsequently notified Mr. Cook that he had earned a total score of 70 on the Exam. A score of 75 is considered a passing grade. Mr. Cook was notified by the Department that he earned a total score of 14.00 points on the sanitation portion of the Exam. The maximum score which may be earned for the sanitation portion of the Exam is 25.00. On or about December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score on the Exam. Mr. Cook challenged his score on the sanitation portion of the Exam. The sanitation portion of the Exam consists of ten criteria for which points may be earned: Criteria Maximum Score Used proper linen setup for the shampoo 2 Properly stored clean and dirty linen during the shampoo 3 Washed hands before beginning the haircut 2 Used the proper linen setup for the haircut 3 During the haircut tools were replaced in sanitizer after each use 3 Properly stored clan and dirty linen during the haircut 2 Washed hands before beginning the permanent wave 2 Used the proper linen/cottonwrap setup for the permanent wave 3 Kept tools sanitized during the permanent wave 3 Properly stored clean and dirty linen during the permanent wave 2 TOTAL POSSIBLE POINTS 25 The criteria of the sanitation portion of the Exam are designated as "procedures" which candidates are required to meet during the Exam. If both examiners determine that a candidate carried out a procedure, the candidate is awarded the total available points for the procedure. If both examiners determine that a candidate did not carry out the procedure, the candidate is awarded no points for the procedure. Finally, if one examiner determines that a candidate carried out the procedure and the other examiner disagrees, the candidate is awarded half of the available points for the procedure. On the sanitation portion of the Exam Mr. Cook received no points for procedures B-2, C-2, and C-3. Mr. Cook received half the points available for procedures B-4 and C-4. Mr. Cook specifically alleged that he should have been awarded the maximum points for procedures B-2, B-4, C-2, C-3, and C-4. For procedure B-2, the examiners were to determine whether "[t]he candidate used the proper linen setup for the haircut." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not used the proper linen setup. For purposes of procedure B-2, the haircut includes shaving around the outline of the hair. Therefore, proper linen setup for the shave is a part of the haircut. Mr. Cook did not dispute the fact that he had not used the proper linen setup for the shave portion of the haircut. Mr. Cook suggested that the haircut portion of the Exam did not include the shave. The evidence failed to support this assertion. Rule 61GK3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also, Page 7 of the Candidate Information Booklet, Respondent's Exhibit 3. Mr. Cook failed to prove that he fulfilled the requirements of procedure B-2. For procedure B-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the haircut." [Emphasis added] This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. Mr. Cook, therefore, was awarded 1 point for this procedure. The examiner that found that Mr. Cook had not performed procedure B-4 properly determined that Mr. Cook had placed a box of rubber gloves on a bar behind the area in which he was working. The Department has cited no authority which defines the term "linens" as including rubber gloves. The common definition of the term "linens" does not suggest that rubber gloves constitute linens. The term "linen" is defined as follows: 1 a : cloth made of flax and noted for its strength, coolness, and luster b : thread or yarn spun from flax 2 : clothing or household articles made of linen cloth or similar fabric3 : paper made from linen fibers or with a linen finish Webster's Ninth New Collegiate Dictionary 1984. Mr. Cook should have received full credit for procedure B-4. Therefore, Mr. Cook should have received one additional point on procedure B-4. For procedure C-2, the examiners were to determine whether "[t]he candidate used the proper linen/cotton wrap setup for the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had failed to use a proper cotton-wrap setup. Mr. Cook failed to explain what steps he undertook in setting up for the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-2. For procedure C-3, the examiners were to determine whether "[t]he candidate kept tools sanitized during the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had placed rods used for the permanent on the back bar. Mr. Cook failed to prove that the did not leave rods on the back bar while performing the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-3. For procedure C-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the permanent wave." This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. The examiner who found that Mr. Cook had not met this criterion determined that Mr. Cook had left end-wraps on the back bar. Mr. Cook failed to prove that he did not leave end- wraps on the back bar. Mr. Cook, therefore, failed to prove that he fulfilled the requirement of procedure C-4. All of the criteria for the sanitation portion of the Exam are listed in a Candidate Information Booklet for the Barber Examination. See page 6 of Respondent's Exhibit 3. The booklet also explains the scoring procedure. Mr. Cook proved that he should have been awarded one additional point on the sanitation portion of the Exam. Therefore, Mr. Cook earned a total score of 71 on the Exam. Mr. Cook's score is below a passing score of 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Barbers Board, finding that Gary Cook should have received a total score of 71 on the Barbers Practical Examination of November 1996. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997. COPIES FURNISHED: Gary Cook 202 Mulberry Circle Crawfordville, Florida 32327 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Department of Business and Professional Regulation Board of Barbers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
