The Issue The issues are whether Respondent is guilty of making or filing a false report signed in the capacity of a licensed chiropractic physician, in violation of Section 460.413(1)(j), Florida Statutes, and, if so, the penalty.
Findings Of Fact Respondent has been a licensed chiropractor in Florida since 1978, holding license number CH0002696. Petitioner requires licensed chiropractors to file Mandatory Practitioner Profile Questionnaire Packets (Profiles). The subject Profile was due on or before April 15, 1999. The Profile asks the licensee to supply various items of information and answer several questions. Section II of the Profile requires information concerning "medical education." In response to the question of what medical school Respondent attended, he wrote: "Logan 'Quack Con-Artist' School of Chiropractic." In response to the type of his degree, Respondent wrote: "Quack Con-Artist Chiropractic Degree." In response to questions concerning medical training, Respondent answered: "'Fraudulent' Automobile Personal Injury Cases (Robbing Insurance Companies)" and "'Fraudulent' Workers Compensation Cases (Robbing Insurance Companies)." Respondent also added to these responses, as well as the responses cited in the preceding paragraph, the following: "Caveat: see letter dated April 7, 1999 sent to Gloria Henderson, Division Director)." Section VIII of the Profile requires information concerning criminal offenses. This section asks: "have you ever been convicted or found guilty, regardless of whether adjudication of guilt was withheld, or pled guilty or nolo contendere to a criminal misdemeanor or felony in any jurisdiction?" The question then states: "If "YES," briefly describe the offense(s), indicate whether the conviction is under appeal, and attach copy of notice of appeal." The form supplies three lines for each of these items of information. Respondent answered "no" to the first question in Section VIII and left the remainder of the section blank. The Profile concludes, immediately above the signature line: "I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 455.624, 458.327, 458.331, 459.013, 459.015, 460.413, 461.013, 775.082, 775.083 and 775.084, Florida Statutes." Respondent signed on the signature line and added the date of April 7, 1999. Immediately beneath the signature line, Respondent added: "Notice: Signed under caveat--see letter dated April 7, 1999 sent to Gloria Henderson, Division Director." Respondent's four-page letter to Gloria Henderson dated April 7, 1999, references the Profile, notifies Ms. Henderson and Petitioner of Respondent's intent to sue, and demands that Petitioner omit Respondent's listing from a website of chiropractors because, in part, "I do NOT accept their 'valueless treatment' known as an "adjustment" (it is a waste of money and time), and because I practice health care from an "Allopathic" (medical approach) point of view, including but not limited to, surgery, drug prescription, physical therapy " Respondent states in the letter that the Petitioner's failure to incorporate his comments in all computer files listing him as a chiropractor will result in his filing a federal action under tort and constitutional law seeking $1 million plus punitive damages. The final caveat in the April 7 letter states: My (Roy A. Day) signature on the instant letter, and the associated completed questionnaire, reflects the denial of Roy A. Day to have meaningful access to so-called "licensed attorney" courts of law, and the associated denials of each and all discovery, and trial by jury, and the right to each and all appeals, and the denial to write a brief on appeals, and each and all associated "railroading" of Roy A. Day, with the overlay for "licensed attorney" courts of law to deny the law, facts and evidence existed when they pertained to Roy A. Day, since Roy A. Day is not represented by a so-called "licensed attorney" at $300.00 per hour in artificial-monopolistic legal fees. In addition, the signature reflects each and all associated "forced and coerced" action, specifically, Roy A. Day has been denied "due process and equal protection of the law." On February 6, 1995, Pinellas County Circuit Court entered an Order of Probation. The Order states that Respondent pleaded guilty to aggravated stalking, interception of oral communication, and uttering a check with a forged endorsement. The Order withholds adjudication and places Respondent on probation for two years. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of two counts of the third-degree felony of uttering a check with a forged endorsement, in violation of Section 831.02, Florida Statutes. The checks totaled approximately $20,000, and, sometime between March 13 and May 5, 1993, Respondent passed each check knowing that the signature of his brother, Donald Day, was forged. For each count, the court sentenced Respondent to one year in jail with credit for 130 days he had already served in jail, and the sentences ran concurrently. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of the third-degree felony of aggravated stalking, in violation of Section 784.048(3), Florida Statutes. The stalking consisted of repeated and harassing telephone calls that Respondent made to the house of a person who had, at one time, expressed interest in purchasing a home in which Respondent had an interest, but later decided not to pursue the purchase. The court sentenced Respondent to one year in jail with credit for 133 days that he had already served in jail, and this sentence ran concurrently with the sentences for uttering a check with a forged endorsement. Petitioner lacked a copy of a judgment concerning the interception of oral communications. This offense arose out of Respondent's surreptitious recording of a conversation that he had with a police officer who was investigating the stalking charges. Absent a copy of the judgment, however, insufficient evidence of this conviction exists for the purpose of this disciplinary case. At the final hearing, Respondent explained that he did not disclose these criminal convictions on the Profile because doing so would somehow implicate him as a "co-conspirator" in the injustices perpetrated upon him by the authorities involved in prosecuting these offenses. Respondent falsely failed to disclose on the Profile his convictions for aggravated stalking and uttering a check with a forged instrument. His failure to disclose this information constitutes fraudulent concealment of these criminal offenses. In a fairly straightforward case, Respondent has filed nearly 250 pleadings containing thousands of pages. He also abused the subpoena power of this tribunal by subpoenaing judges and court officials from every level of the federal and state judiciaries. Last but not least, Respondent has defamed and discredited numerous persons without apparent reason, although some question exists whether Respondent is capable of exercising consistent control over the impulses leading to at least some of these utterances. The crimes of which Respondent was convicted may have arisen out of family disagreements, possibly concerning the sale of a family home. Respondent may be obsessively preoccupied with actual or perceived injustices that he suffered as a result of this transaction. Undoubtedly, Respondent compulsively litigates everything that has the most remote bearing upon this transaction, using court files as archives for materials that he believes will vindicate him, despite an ardent and often- expressed repulsion for judges, lawyers, and others connected with the legal system. No penalty but revocation is suitable under the circumstances, absent a showing by Respondent that he has commenced or is continuing therapy and that the prognosis is reasonably good. The record lacks such evidence. Respondent is not unintelligent, nor is he entirely devoid of insight. His thinking, although at times disordered, is capable of impressive organizational efforts, as best revealed by his meticulous organization in his proposed recommended order of what otherwise seemed to be a bewildering variety of materials that Respondent has seen fit to file in this case. Although his behavior seems at times compulsive, Respondent was capable of a certain level of self-restraint, at least during the hearing and when not directly confronting the underlying transaction or crimes. If they occur at some point in the future, successful diagnosis and treatment of Respondent should inform Petitioner's interpretation of the events and behaviors described in this Recommended Order, if Respondent seeks relicensure as a chiropractor.
Recommendation It is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Respondent guilty of violating Section 460.413(1)(j), Florida Statutes, and revoking his license. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 19th day of July, 2001. COPIES FURNISHED: Joe Baker, Jr. Executive Director Board of Chiropractic Medicine 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Theodore M. Henderson Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Wings S. Benton, Senior Attorney Agency for Health Care Administration Office of General Counsel Medical Quality Assurance Practitioner Regulation--Legal Post Office Box 14229 Tallahassee, Florida 32317-4229 Roy A. Day Post Office Box 33 Tarpon Springs, Florida 34688-0033
The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the license, No. 1454, issued to licensee should be revoked, annulled, withdrawn or suspended.
Findings Of Fact The Florida State Board of Chiropractic Examiners filed an Administrative Complaint against licensee Stanley Turner, D.C., who holds license number 1454. Count I alleged Respondent made sexual advances toward four patients. Count II alleged that Respondent made improper sexual advances toward employees. Count III alleged that Respondent has been addicted to the habitual use of narcotics, stimulants, or other habit-forming drugs since July 1, 1975. Count IV alleged that Respondent made improper sexual advances on a patient under the guise of necessary chiropractic treatment. Count V alleged that Respondent offered and administered medicines and drugs to two patients. Count VI was dropped at the hearing. Count VII was dropped at the hearing. Count VIII alleged that the foregoing Counts constitutes unprofessional conduct. Respondent denied each of the allegations of the Petitioner. The testimony of the various women who testified against Dr. Turner, together with the testimony of the women who testified for Dr. Turner, does not establish the fact that "improper sexual advances" were actually made by the Respondent, Dr. Turner. The nature of the practice of acupuncture and of the practice of chiropractic is such that the procedures themselves could be misleading as to the intent of the practitioner. Testimony of six medical doctors and two dentists that they had filled prescriptions for the Respondent, Dr. Turner, which prescriptions were for various drugs, Valium, Darvocet, Milhouse, Percodan, Tylenol, Robaxin, was coupled with their testimony that they issued these drugs through "professional courtesy" without ordinary examinations of the patient and that in fact Dr. Turner did suffer from a variety of ills including a back injury, an accident with a horse, and "hangovers." The evidence submitted does not establish that the Respondent took all of these drugs himself or was addicted to the habitual use of narcotics, stimulants or the habit-forming drugs. It does establish that drugs were secured by Dr. Turner in a manner and amount that could be and perhaps was embarrassing to those doctors who wrote the prescriptions for Respondent. The evidence does not support a finding that drugs were offered or administered to patients and employees and other persons. The testimony does establish that the Respondent was guilty of unacceptable conduct inasmuch as the testimony as a whole establishes the fact that Dr. Turner did take advantage of the medical community in requesting prescriptions and that his conduct toward his clients and employees was casual and at times undignified.
Recommendation Give Respondent Stanley Turner a public reprimand then dismiss the complaint. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Charles F. Broome, Esquire Post Office Box 729 Titusville, Florida 32780 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as observation of the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent Calabro has been licensed as a chiropractic physician in Florida, having been issued licensed number 1755. In March of 1978, Diana Avery, then a sixteen (16) year old junior in high school, went to respondent for the treatment of recurrent pain in her kidney area, headaches, dizziness and swelling in her feet, ankles and hands. She had been referred to the respondent by her stepfather who was also one of the respondent's patients. At the time of her initial visit, Miss Avery had never been to a chiropractor and had never had a breast examination or a pelvic examination. She continued to go to respondent for treatment until early June, 1978, far a total of approximately fourteen (14) visits. During her treatments, only respondent and Miss Avery were in the treatment room. During her treatment sessions, Miss Avery wore a patient gown which was open in the back, but tied at the neck, and underpants. On her initial visit, respondent untied the patient gown and, while she was sitting up on the examination table, respondent instructed her to hold her arms out to the side and he then placed both his hands on her two breasts. He made a comment to her about the large size of her breasts. On several subsequent appointments, respondent untied Miss Avery's gown and placed both hands on her breasts. On one occasion respondent stood behind her and, with both his hands, fondled her breasts. On several occasions, respondent would instruct Miss Avery to remove her underpants and lie with her back on the examination table, with her knees up and her feet positioned on the table. Respondent would then insert, without the benefit of gloves, or other protective covering or lubrication, one or more of his fingers into her vagina and manipulate his fingers in and out of her vagina, while resting his other hand on her abdomen. On one occasion, the same procedure was followed except that Miss Avery was lying face dawn on her stomach. The insertion of respondent's fingers into Miss Avery's vagina occurred on from four to six occasions. During at least one of the treatment sessions, Miss Avery was positioned face dawn on the examination table and respondent, while adjusting her neck, moved her hair aside and began kissing the back of her neck. On another occasion, he took her hand and placed it on his genital area. After her last appointment with respondent, Miss Avery needed to pick up some insurance forms. Respondent told her to come into his office after the treatment. When she went into his office, the lights were out, respondent pinned her against the wall and attempted to kiss her. He also was lifting her skirt and attempting to put his hand into her underwear. He advised her that a sexual relationship with him would be good for her. The patient records for Miss Avery do not reflect that either a breast examination or a pelvic examination were performed by the respondent. During the period of time between March and June of 1978, Miss Avery was taking birth control pills to regulate her menstrual cycle. While a breast examination by a chiropractor may be proper for a patient taking birth control medication, the appropriate method of performing such an exam is to palpate each breast with the fingertips of both hands to determine if there are any masses or growths. When a pelvic or gynecological examination is necessary, it is proper to have a nurse in the room, to inform the patient of the procedure and to utilize surgical gloves or other protective covering and a lubricating agent. Such examinations should be recorded on the patient's medical records. Gail Henke went to respondent from May to October of 1980 for treatment for injuries she received in an automobile accident. She was experiencing numbness in her hips and legs, back pain and problems with her left knee. Mrs. Henke was then 26 years old, was married and had one child. During the treatment sessions with respondent, she would wear only a gown which tied in the back, with nothing underneath, and lie on the examination table on her stomach. On many occasions, particularly near the end of her treatment period, respondent would insert the fingers of one of his hands, without protective covering or lubrication, into Mrs. Henke's vagina while placing his other hand on her buttocks or lower back. Several days prior to her last visit for treatment by the respondent, Mrs. Henke called his office and spoke to Rose Oppenheimer, respondent's receptionist, about a problem she was having with a difficult bowel movement or hemorrhoids. On her October 15, 1980, appointment, respondent adjusted her back, left the treatment room and returned with an ointment which he rubbed on her from her shoulders down into her vaginal area. He then placed a plastic- covered pillow under her abdomen and a towel between the upper thigh portion of her legs. Without saying anything to her, respondent straddled the table, placed one hand on her buttocks or lower back area and inserted the fingers of his other hand into her vagina. Then, both respondent's hands were removed from Mrs. Henke's body and she heard the sound of a metal zipper. She then felt one of respondent's hands back on her hip or lower back, felt fingers go back into her vagina, then pull out, and then felt something else go into her vagina and two hands on her back. Believing that respondent had placed his penis into her vagina, Mrs. Henke raised up on her elbows and asked respondent what had happened. Respondent said nothing. Respondent then withdrew all parts of his body from Mrs. Henke, but remained at the foot of the table. Some two to three minutes later, respondent came around to the head of the examination table, crouched or knelt down, and told Mrs. Henke that nothing had happened. She repeatedly asked respondent what he had done and told him what she thought had happened. He explained that she could have experienced such a sensation from the towel which was placed between her thighs or from hemorrhoids. Mrs. Henke immediately told her husband about the October 15, 1980, incident with respondent and he urged her to report the matter to the sheriff's office. At the request of the Sheriff's office, Mrs. Henke went to respondent's office on October 31, 1980 equipped with a body bug or transmitter and attempted to elicit from him information as to what transpired during her October 15th appointment. Respondent repeatedly denied that anything had happened and attempted to explain to her that the sensation she felt could have resulted from the relaxation of distended blood vessels in the area of her hemorrhoids. During the hearing, respondent testified that he conducted a visual inspection for hemorrhoids on Mrs. Henke on October 15, 1980, but found no evidence of hemorrhoids. The vaginal manipulations performed by the respondent on both patients Avery and Henke are not acceptable chiropractic manipulations, techniques or modalities. There is no recognized chiropractic treatment or technique which includes the insertion of fingers into the patient's vagina. There is a form of treatment performed by chiropractors known as the Logan Basic Technique. Respondent states that he used this technique on both Miss Avery and Mrs. Henke. This form of treatment requires the patient to lie on her stomach and involves the placement of the chiropractor's thumb at a point between the anus and the vagina and the application of pressure at that point, with the chiropractor's other hand being placed on the patient's lower back. While it is possible that the chiropractor's hand or fingers may come in contact with the patient's vaginal area during the administration of the Logan Basic Technique, it would not be appropriate for the chiropractor's fingers to actually enter or penetrate the vagina.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent be found guilty of violating Sections 460.412, 460.413(1)(u) and 460.413(1)(w), Florida Statutes, and that his license to practice as a chiropractic physician in Florida be revoked. Respectfully submitted and entered this 18th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR 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 18 day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Ms. Jane Raker Regulation - Legal Services Executive Director Post Office Box 1900 Board of Chiropractic Orlando, Florida 32802 130 North Monroe Street Tallahassee, Florida 32301 Joseph G. Donahey, Jr., Esquire 13584 49th Street North Suite A Clearwater, Florida 33520 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
