The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed chiropractic physician, holding Florida license number CH 5839. In addition to his chiropractic training, the Respondent has completed a course of study in biomechanics and has received a "Masters of Professional Studies" degree from Lynn University in Human Biomechanical Trauma. He advertised services related to "Human Biomechanical Trauma" to other chiropractic physicians practicing in the same geographic area. On November 29, 2001, a twenty-nine-year-old female (referred to hereinafter as the patient) presented herself to the Respondent's office complaining of back pain of approximately two weeks duration. The patient was a former gymnast with many years of training. Her regular exercise routine included weight lifting, and the onset of her back pain occurred while she was lifting weights. Initially the pain was in the area of her mid-back and during the subsequent weeks had progressed to her lower back, and to her upper back and neck. The patient also had a history of migraine-type headaches unrelated to the weightlifting and for which she had sought previous treatment with limited success from another physician. On November 29, 2001, the Respondent completed a medical history and performed an evaluation of the patient's condition. The Respondent provided treatment and adjustment. During the time the patient received treatment, she removed all clothing but for her underpants, at the Respondent's direction. A robe was provided inside the treatment room for her to wear after undressing and before the treatment was provided. After providing the treatment on November 29, the Respondent referred the patient to another facility for a series of x-rays. On November 30, 2001, the patient returned for additional treatment at which time the Respondent performed an adjustment to the patient's neck and back. After the treatment was completed and the Respondent exited the room, the patient began to dress, at which point the Respondent entered the room holding a digital camera. The patient testified that the Respondent removed her robe, leaving her clad only in her underpants, that the Respondent told her that the photography was a routine office practice, and that he could not continue the treatment unless the photographs were taken. The patient testified that the Respondent was aggressive while the photographs were taken, speaking with a "raised voice" and moving quickly, instructing her on how to pose, and moving her arms and legs into position. The patient testified that during the incident she was scared and in a "dazed state," and that she didn't know how many photos were taken or how much time elapsed during the photo session. She made no attempt to leave the examination room until after the photos were taken. The Respondent denied that he told the patient that the photographic evaluation was a routine office procedure. The Respondent testified that he discussed the photographic evaluation with the patient and that she permitted the photos to be taken. He testified that he both verbally directed and demonstrated by example, the positions in which he sought to photograph the patient. He further testified that some of the positions came from the patient when describing her "activities of daily living." He testified that she participated in the photography willingly and without protest. Other than the Respondent and the patient, no one else was in the room during the time the photographs were taken. The Respondent's offices consisted of a small suite of rooms located in a strip shopping center. Based on the physical structure of the offices described at the hearing, it is unlikely that voices could be raised to the point of "yelling" without others in the office being aware of the situation. There is no evidence that the patient was physically prevented from leaving the office. Although the patient signed a generic release for treatment when she began seeing the Respondent, the patient testified that the release was essentially blank at the time she signed. In addition to the generic consent for treatment form, the Respondent's office had prepared a separate "Consent Agreement Concerning Biomechanic Photographic Evaluation" which provided as follows: Dear Patient: Holistic Healthcare Centers offers Biomechanic Photographic Evaluation for the purpose of specific biomechanic assessment of the patient. The procedure will include some or all of the following: Digital photos of the patient in various positions, movements and activities. These photographs will be taken with the patient partially or completely unclothed, as determined by the physician(s). Processing and analysis of these photographs on computers either on the premises or at another location, to be determined by the physician(s). Reportage to the patient as to the results of the analyses. Restrictions on the use of these photographs include: Photographic data will be kept in password protected locations and will be accessible only by Dr. Scott Baker and Dr. Scott Drizin. Appropriate hard copies of photographs will be kept in the patient's confidential case file, if needed. The photographic data will not be published either in print or electronically without the patient's express written consent. Utilizations of photographs, data and analyses results can be used educationally while protecting the privacy of the patient. I HAVE READ, UNDERSTAND AND CONSENT TO THE ABOVE. Under the conditions indicated, I hereby place myself under your care for those procedures as described above as indicated in your professional judgment. The "Consent Agreement Concerning Biomechanic Photographic Evaluation" provided a space for the signature of the person from whom consent is being sought and for the signature of a witness. The patient did not sign the photographic consent form. At no time did the patient sign any written release specifically allowing the Respondent to take photographs. According to his note handwritten on the "Consent Agreement Concerning Biomechanic Photographic Evaluation," the Respondent became aware at some point that the patient had not signed the photo consent form. A few days after the photos were taken, the patient returned to the Respondent's office and inquired about the photographs. By that time, the digital photo files had been transferred from the camera used to take the photos to a computer located in the Respondent's office. After the patient requested to view the photos, the Respondent went to a computer where the digital photo files were stored. The Respondent and the patient reviewed the photographs for about 45 minutes. During the photo review, the Respondent made comments that could be construed as relating to the patient's posture. According to the patient's testimony, such comments included "you're standing a little to the left on this one and you should be standing more upright on this one" and "see, you're standing crooked, you should be standing straight." During the photo review, the Respondent told the patient that he and his partner, Dr. Scott Baker, were interested in writing a book and pursuing additional medical training. The patient testified that the Respondent may have used the word "biomechanics" during the photo review, but was not certain. After the photos were reviewed, the patient asked for a copy of the digital image files. Initially the Respondent declined to produce the files, but by the end of the appointment, after receiving additional therapeutic treatment and adjustments, the Respondent provided to the patient a disc containing the photo files. According to the patient, the Respondent advised the patient not to show the photographs to anyone. After the patient received a copy of the photo files, she did not again see the Respondent in a therapeutic setting. She cancelled her remaining appointments with the Respondent, obtained her X-rays from the Respondent's practice, and sought treatment elsewhere. After the patient cancelled the appointments, she received at least one call from the Respondent's secretary inquiring as to the reason for the cancellation. During the call, the Respondent spoke to the patient and inquired as to whether there were problems, at which point the patient advised that she would not return to the Respondent for treatment. At the hearing, the Petitioner presented the expert testimony of Dr. Michael Major, a Florida-licensed chiropractic physician. Although Dr. Major appears to be knowledgeable about biomechanics, he has not undertaken any advanced education in biomechanics. Dr. Major testified one of the reasons to use photography in a chiropractic setting would be to observe structural changes that could occur related to treatment. Dr. Major testified that such photos are generally taken from front, side, or rear perspectives, and utilize spinal or anatomical "landmarks" for purposes of comparing pre-treatment and post-treatment conditions. Dr. Major further testified that he has used digital photography in his practice, generally placing subjects in front of a grid-pattern marked on a wall. Dr. Major's grid system also includes a bilateral scale to identify weight-bearing issues. By using the photo of the subject in front of the grid and on the scale, a chiropractic physician is able to show to a photographic subject various spinal or postural conditions. Dr. Major has used this system in marketing services to prospective clients. Dr. Major termed photos taken from positions other than in front of, to the side of, or from behind a patient as "oblique" angle photos. Dr. Majors testified that such photos had very little analytical value because of the difficulty in accurately reproducing at a subsequent date, the angles from which the original photographs were taken, thus making comparison between the sets of photographs difficult. Dr. Major testified that, when taking a later set of photos, where the angle of camera placement relative to the body is different from the original camera placement by only a few degrees, the later photograph would offer little comparative value because the landmarks would not be located appropriately. A review of the photographs in evidence indicates that the patient was photographed in a routine examination room, posed in various positions, and unclothed but for her underpants. At the hearing, Dr. Major reviewed the photos offered into evidence and opined that although some of the photos taken by the Respondent of the patient provided appropriate diagnostic information, others did not. Dr. Major testified where the photos did not contain appropriate diagnostic information, the Respondent violated the applicable standard of care by not utilizing the best techniques in order to isolate planes of motion sufficiently to provide useful information. Dr. Major also testified that the failure to obtain the patient's consent prior to taking photographs was a violation of the applicable standard of care. Dr. Major opined without elaboration that taking the photographs without the patient's consent also constituted sexual misconduct. According to Dr. Major, the failure to have another female present in the room during an exam was not a violation of the applicable standard of care. The Respondent offered evidence related to his use of photography and the development of a "protocol" that he and his partner were creating to document biomechanical evaluations of certain patients. In addition to the Respondent's testimony, the Respondent presented the testimony of Scott M. Baker, D.C., who was in practice with the Respondent at the time of the events at issue. At some point in the mid-1990's, Dr. Baker and the Respondent became interested in continuing their education in biomechanics, and both completed the additional biomechanics training referenced herein. Part of their interests included conducting research to develop a "protocol" for biomechanical evaluation. Part of the protocol included photographic evaluations of patients. The model apparently being followed referenced radiological studies where multiple X-rays from different angles were taken of a patient during diagnostic testing. However, although the Respondent asserted that the photographs were part of the treatment offered to the patient, Dr. Baker testified that the photos were not actually taken for diagnostic purposes. The alleged purpose of the photos was to educate a patient on existing conditions with the ability to demonstrate at a later date, visible progress though the use of comparative photography. Dr. Baker testified that after the Respondent took the photos of the patient, he and the Respondent reviewed the photos and indexed them by reference to anatomical characteristics. Dr. Baker acknowledged that some of the photos "weren't useful," but that it was preferable to err towards taking too many photos rather than too few, and that the intent was to discard those photos that were not useful. The consent form specific to the photographic study also indicates that the photos may be used for educational purposes with appropriate protection of a patient's privacy. Dr. Baker acknowledged that the protocol was in preliminary stages of development and that greater specificity would be required as development continued. Prior to the patient in this case, only one other chiropractic client had been photographed based on the protocol. When the photographs of the patient were taken, the position from which each photo was taken was not recorded. Dr. Baker testified that when subsequent photos were taken for comparative purposes, the photo subject would have to be repositioned based on the earlier photograph, using an anatomical point of reference. No visible grid pattern was present in the room where the patient's photos were taken and no grid is present in the photos taken of the patient by the Respondent. In order to view the photos, the Respondent planned to use a graphics software program called "Paint Shop Pro" which could allow a grid to be superimposed on a photograph. Whether the computer imposition of a grid pattern on a photo taken subsequently would provide specific anatomical references sufficient to compare the photos is unknown. The asserted reason why the patient wore only underpants in the photos was that wearing a bra would alter the center of gravity being measured. The Respondent further testified that wearing a bra could cause a "cutaneous sensory response" that could lead to a "reflex muscle spasm which would alter the center of gravity." The evidence fails to establish why the same reasoning was not applicable to the underpants that the Respondent directed the patient to leave on.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding that Scott Drizin, D.C., is guilty of a failure to practice chiropractic medicine with the level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances, and imposing a fine of $2,500. DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2005. COPIES FURNISHED: Louis Kwall, Esquire Kwall, Showers, Coleman & Barack, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701
Findings Of Fact The Petitioner took the chiropractic licensure practical examination administered in November of 1989 and received a score of 71.2%. The minimum passing score was 75%. The Petitioner needs 1.5 additional raw score points in order to obtain a minimal passing grade. The Petitioner challenged portions of the practical portion of the chiropractic examination. The practical examination includes the areas of x-ray technique, chiropractic technique, and physical diagnosis. Stephen Ordet, D.C., testified on behalf of the Respondent. He was received as an expert in chiropractic medicine (TR, page 117, line 19). He testified that he has been an examiner for the Florida chiropractic practical examination since approximately 1980 (TR, page 102, line 18). The practical portion of the chiropractic examination was administered to the Petitioner by two of several doctors of chiropractic, who were examiners at this examination. The practical examination questions asked the Petitioner were developed by the two examining doctors. The various areas which can be included on the technique examination include cervical, lumbar, thoracic, occipital, pelvic, rib, soft tissue, and extremities. The examiners' questions to the Petitioner did not address the lumbar, occipital or rib areas. Examiner No. 12 gave the Petitioner a score of 4 on cervical, 3 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 1 on extremities. Examiner No. 13 gave the Petitioner a score of 4 on cervical, 3.5 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 2 on extremities. Each portion of the examination has a possibility of 4 points. A candidate must average 3 points fob each question on the examination or a score of 75%. The school which the Petitioner attended is an accredited school. The Petitioner's responses to various questions from the examiners were scored by the examiners under more than one phase of the examination. The Petitioner received a grade of 4 (excellent) from both examiners on the cervical portion of the examination. The Petitioner's expert witness testified that the Petitioner's responses to the questions on the pelvic and thoracic were complete answers. The grades given the Petitioner by one of the examiners were 3.5 and 3, and the grades given by the other examiner were 3 and 3. The grades given are consistent with the petitioner's expert's characterization of her performance. There is no evidence that these questions or grading were arbitrary or capricious. The Petitioner was given an extremities question, and she began an examination of the patient. Thereafter, she advised the examiners that her school had not taught adjustment of the extremities and had not known she would be examined in this area. Additional evidence presented at the bearing shows that extremities were not taught at the Petitioner's school when she attended based upon the school's philosophy relating to spinal adjustment. The two remaining areas addressed in the practical portion of the examination were soft tissue and extremities. Grader 13 scored the Petitioner 2.5 on soft tissue and 2 on extremities. Grader 12 scored the Petitioner 2.5 on soft tissue and 1 on extremities. Dr. Ordet opined that extremity technique as a necessary part of chiropractic medicine (TR, page 100, line 11). He referred to several technique books in chiropractic to support the necessity of extremity technique. The text books included Anatomical Adjustment Techniques by Dr. Homer Beatty. One of the examiners responded that they would move onto another area and gave her a new question referring back to the patient with torticollis. The responses by the Petitioner regarding manipulative relief of the torticollis were not addressed by the Petitioner's witness. There is no basis for concluding that the examiners were clearly erroneous in their evaluation of the Petitioner's response. The Respondent's expert witness revealed that the examination did not place special emphasis on the technique taught at the candidate's particular college.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the extremities question be stricken from the techniques attempted; the Petitioner receive the average of her remaining techniques scores; and receive a passing score on the examination. DONE AND ENTERED this 15th day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3398 Petitioner's Proposed Findings of Fact Adopted and renumbered. Adopted and renumbered. Rejected. The state of the Petitioner's health when this examination was given is conjectural. The Petitioner was given added credit upon a review of her examination; however, one cannot say the examiners were unfair. The testimony about the amount of time for each examination is conflicting. The Petitioner did not clearly establish this point. True but irrelevant. Contrary to the facts. Contrary to the facts. True but irrelevant. Respondent's Proposed Findings of Fact Adopted and rewritten. Not a finding. Not a finding. Adopted and rewritten. Adopted. Adopted in part, rewritten in part, and rejected in part. Adopted first sentence. Adopted. Adopted. COPIES FURNISHED: Ms. Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois Buxbaum 23 Jones Street, #19 New York, NY Vytas J. Urba, Esq. Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 =================================================================
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.
The Issue The issue is whether Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.
Findings Of Fact Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows: Grader 27--Cervical (3), thoracic (3), occipital (3), pelvic (2), rib (3), and soft tissue (3.5). Grader 37--Cervical (3), thoracic (3), occipital (3), pelvic (3), rib (3), and soft tissue (3). Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance: Cervical (3), thoracic (2.5), occipital (3), pelvic (2), rib (3), and soft tissue (2.5). Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Chiropractic Examiners, enter a Final Order denying the request for relief filed by Jens Emilio Valle and dismissing the petition for relief. DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of August, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Examiners 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7). COPIES FURNISHED: E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067 Patricia Guilford Executive Director Board of Chiropractic Examiners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Board introduced and the affidavit of Charles E. Barner, Jr., was received into evidence as Exhibit 1. Exhibit 1 reflects that Ronald H. Draxten holds license number 1232 issued by the Florida Board or Chiropractic Examiners. Mrs. Hellen Rhew, the mother of Bonnie Ann Hullet, was called and testified. Bonnie Ann Hullet was taken by her mother to Dr. Draxten for treatment of a sore neck. She received chiropractic treatment from Dr. Draxten in early May 1975. On their second visit, Mrs. Rhew advised Dr. Draxten that her daughter suffered from stomach cramps and nausea following her treatments. Dr. Draxten advised Mrs. Rhew that at their next visit he could treat her daughter to relieve the stomach cramps and nausea. Dr. Draxten did not advise Mrs. Rhew of the nature of the treatment. On the following visit, after having treated her in the manner he had in the past the daughter and mother were taken to a treatment room approximately 10 feet X 20 feet, as referenced by Mrs. Rhew to items in the courtroom. Her daughter was placed on a treatment table on one side of the room, and Mrs. Rhew was seated directly opposite her. Dr. Draxten, standing between Mrs. Rhew and her daughter, began treating the daughter. After a short while Dr. Draxten left the room advising Mrs. Rhew he would return shortly. Bonnie Ann Hullet, Mrs. Rhew's daughter, stated that after she had laid down on the table, Dr. Draxten had pressed on her stomach with his hands, then she felt a sharp pain. Thereafter, the doctor left. When Dr. Draxten returned, she saw a needle. Mrs. Rhew saw the needle while it was in her daughter's abdomen. Dr. Draxten advised Mrs. Rhew that her daughter would have some reaction to the treatment which might include nausea and cramps, but she would get better and have less trouble than before. It was represented by both counsel for the Board and Dr. Draxten that Dr. Draxten had attended a course in acupuncture and had graduated, however, the Board did not recognize the school which he had attended. Thereafter, Dr. Draxten had enrolled in a school recognized by the Board, and on the day following the treatment of Bonnie Ann Hullet was examined by the second school which was recognized by the Board and successfully passed. Six weeks later the Board certified Dr. Draxten to practice acupuncture as a part of chiropractic for which he had been trained, however, the Board had officially discouraged Dr. Draxten from indicating his eligibility to practice acupuncture in the manner delineated by statute.
Recommendation The Hearing Officer recommends that Dr. Gerald Draxten receive a letter of reprimand for having violated the provisions of Rule 21D-1.04, F.A.C., and thereby violated Section 460.13(3)(h), F.S. DONE and ORDERED this 23rd day of February, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Counsel for Petitioner John DuVall, Esquire Counsel for Respondent
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
