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 In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
The Issue The issue in the case is whether Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2-15.001(2)(e)3. are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioner, a Florida-licensed chiropractor, is the subject of an Administrative Complaint filed against him by the Department of Health, Board of Chiropractic. The Administrative Complaint alleges that the Petitioner's letterhead identifies him as a "CICE (Certified Independent Chiropractic Examiner)" and that such designation requires a disclaimer as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e)3. The Administrative Complaint further alleges that the use of the designation constitutes a deceptive and misleading advertisement pursuant to Florida Administrative Code Rule 64B2- 15.001(2)(e). The Administrative Complaint was filed as the result of a complaint against the Petitioner filed by another chiropractor. The American Board of Independent Medical Examiners (ABIME) bestows the designation "CICE" on chiropractors. Some chiropractors such as the Petitioner obtain the designation by completing a 20-hour course over a weekend and then passing a test. A witness for the Respondent, Dr. Ronald Lee Harris, obtained the designation by working with the ABIME on reviewing examination questions used by the ABIME and has not completed any course of training related to the CICE designation. Another witness for the Respondent, Dr. Stanley Kaplan, testified that he was listed on the ABIME website with the CICE designation, but that he was unaware of the designation until the day prior to the hearing and has not completed any course of training related to the CICE designation. Florida Administrative Code Rule 64B2-15.001(2)(e) provides as follows: 64B2-15.001 Deceptive and Misleading Advertising Prohibited; Policy; Definition. (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it: * * * (e) Conveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, possess qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialities recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each speciality requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any specific chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that “The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine.” The Petitioner asserts that the phrase "other than a simple listing of earned professional post-doctoral or other professional achievements" as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e) is vague and fails to properly apprise a reasonable person as to what is prohibited. The Respondent presented the expert testimony of three witnesses during the hearing. Two of the three witnesses offered differing opinions as to what constitutes "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Stanley Kaplan testified that the phrase would permit a chiropractor to list only his chiropractic degree, but also indicated that a "simple listing" could include any items a chiropractor would include on a curriculum vita. Dr. Ronald Lee Harris testified that the phrase includes only the chiropractic degree and that listing "achievements" other than a degree and Diplomate status would require inclusion of the language related to the awarding entity's lack of affiliation with or recognition by the Florida Board of Chiropractic Medicine (the "disclaimer language"). Dr. Harris testified that the information set forth on a curriculum vita would not be properly included in "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Steven Willis testified that the phrase "simple listing of earned professional post-doctoral or other professional achievements" could be viewed as vague if considered outside the context of the remainder of the rule section, but asserted that the language set forth in subsection 3 of Florida Administrative Code Rule 64B2- 15.001(2)(e) clarified the phrase. Dr. Willis' testimony was credible and is accepted. Based on the testimony of Dr. Steven Willis and a contextual reading of the Rule, Florida Administrative Code Rule 64B2-15.001(2)(e) is not vague. The evidence establishes that the reference to "a simple listing of earned professional post-doctoral or other professional achievements" achievements in Florida Administrative Code Rule 64B2-15.001(2)(e) is limited by subsection 3 to require inclusion of a disclaimer in certain specific circumstances. Clearly a chiropractor can advertise the fact that he has received a doctorate in chiropractic medicine. A chiropractor may also advertise "earned professional post- doctoral or other professional achievements," whether or not the Board of Chiropractic Medicine has recognized the conferring entity. In the event the Board has not recognized the conferring entity, the advertising chiropractor must include the disclaimer language when the designation connotes "recognition as a specialist in any specific chiropractic or adjunctive procedure." The Petitioner further asserts that Florida Administrative Code Rule 64B2-15.001(2)(e)3. is vague because the phrase "specialist in any specific chiropractic or adjunctive procedure" is capable of multiple interpretations. The evidence establishes that, within the context of the Rule, "specialist in any specific chiropractic or adjunctive procedure" has sufficient meaning to convey who is being identified and is therefore not vague. The Rule requires only that where an advertising chiropractor represents himself to be a specialist in any chiropractic or adjunctive procedure by virtue of a "certification" from an unrecognized entity, the advertising must include the disclaimer language that the certification was received from a "private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine."
Findings Of Fact The parties have stipulated to the facts in this case as follows: The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County. The advertisement was published on September 16, 1987. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center". The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..." Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control". Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1991. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive Suite 177 Laguna Niguel, CA. 92677-2040 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to additional credit for the answer he gave in response to Question 21 on the physical diagnosis portion of the November 1999 chiropractic licensure examination.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1999. The practical examination consisted of three parts: "technique," "physical diagnosis," and "x-ray interpretation." The minimum passing score for each part was 75. Petitioner passed the "technique" and "x-ray interpretation" portions of the examination; however, he failed the "physical diagnosis" portion of the examination (PD Test), with a score of 68. On this portion of the examination, candidates demonstrated their knowledge of "physical diagnosis" by responding to test questions, in the presence of two examiners, verbally and/or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the two examiners' scores. Prior to the administration of the PD Test, all examiners were provided with instructions regarding their role in the examination process and the standards they should follow in grading the candidates' performance. Candidates were provided with a Candidate Information Booklet (CIB) in advance of the licensure examination. Among other things, the CIB listed, by category ("acupuncture," "physical diagnosis," "technique," and "x-ray") reference materials that could "be used to prepare for the examination." The list was preceded by the following advisement: The list is not to be considered all- inclusive. Thus, other comparable texts may be used to prepare for the examination. Under the category of "x-ray" the following "references" were listed: Eisenburg, Gastrointestinal Radiology- A Pattern Approach, Hagerstown, MD: Lippencott, Second Edition, 1989. Paul & Juhl, Essentials of Radiologic Imaging, Hagerstown, MD, Lippencott, Sixth edition, 1993. Taveras & Ferrucci, Radiology: Diagnosis- Imaging-Intervention, Hagerstown, MD: Lippencott, 1986. Five-volume set, loose- leaf renewed in July 1994. Yocum, T. R., & Rowe, L. J., Essentials of Skeletal Radiology, Baltimore: Williams & Wilkins, First Edition 1986. Not on the list under "x-ray" or under any other category was Dr. Robert Percuoco's Radiographic Positioning for the Chiropractor (Dr. Percuoco's Publication), the text book used by Dr. Percuoco in the radiology classes he teaches at the Palmer College of Chiropractic in Davenport, Iowa (Palmer). Palmer was the nation's first college of chiropractic, and is accredited by the Council of Chiropractic Education. Petitioner graduated from Palmer and was taught radiology by Dr. Percuoco. Question 21 on the PD Test was an eight-point "diagnostic imaging" question (with no provision for partial credit) that asked the candidates to "demonstrate a Lateral Thoracic view." Among the six items the candidates had to address in answering the question was the central ray. Page 54 of the Dr. Percuoco's Publication describes what, according to the author, needs to be done to obtain a view of the lateral thoracic spine. It provides, in pertinent part, as follows (Dr. Percuoco's Approach): Center the central ray to the film. The vertical portion of the central ray should pass posterior to the head of the humeri. In responding to Question 21 on the PD Test, Petitioner relied on the foregoing excerpt from Dr. Percuoco's Publication. He told the examiners that the central ray should be centered to the film and that the vertical portion of the central ray should pass one inch posterior to the head of the humerus. The two examiners evaluating his performance both gave Petitioner an "A" (or no points) for his response to Question 21. In so doing, they acted reasonably and in accordance with the grading instructions they had received prior to the administration of the PD Test. Dr. Percuoco's Approach (upon which Petitioner relied) is not generally accepted in the chiropractic community. A reasonably prudent chiropractor, in taking an x-ray of the lateral thoracic spine, would do what was necessary to have the central ray pass, not "posterior to the head of the humeri," but "approximately 3 inches inferior to [the] sternal angle," as Drs. Yocum and Rowe, two of the most respected radiologists in the country today, instruct in their text, Essentials of Skeletal Radiology, which was one of the reference materials listed in the CIB (Dr. Yocum's and Dr. Rowe's Approach). Dr. Yocum's and Dr. Rowe's Approach yields a more exact and complete view of the lateral thoracic spine than does Dr. Percuoco's Approach. Because Petitioner failed to incorporate Dr. Yocum's and Dr. Rowe's Approach in his response to Question 21, the examiners were justified in determining that Petitioner did not answer all six parts of the question correctly and that he therefore should be awarded an "A" (or no points) for his response.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the physical diagnosis portion of the November 1999 chiropractic licensure examination. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 7th day of November, 2000.
The Issue The issue in this case is whether Florida Administrative Code Rule Subsections 64B2-15.001(2)(e), (i), and (l) constitute an invalid exercise of delegated legislative authority in that they exceed Respondent's rulemaking authority or enlarge, modify, or contravene the law the Rule implements.
Findings Of Fact Petitioner Michael John Badanek, D.C., is a duly licensed chiropractic physician in the State of Florida. Dr. Badanek actively practices in Ocala, Florida. Dr. Badanek has engaged in and is engaging in, the advertising of professional services to the public. Dr. Badanek is subject to the provisions of Chapter 460, Florida Statutes, and the rules promulgated by Respondent. Dr. Badanek's failure to adhere to the provisions of Chapter 460, Florida Statutes, and the rules promulgated thereunder, including the Challenged Rule Subsections, may result in the discipline of his professional license. Dr. Badanek has standing to challenge the Challenged Rule Subsections. The affected state agency is the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), located at 4052 Bald Cypress Way, Tallahassee, Florida. The Board is charged by Chapter 460, Florida Statutes, with the duty of regulating the chiropractic profession in Florida. In carrying out that duty, the Board has adopted Florida Administrative Code Rule Chapter 64B2. At issue in this matter is the Challenged Rule Subsections of Florida Administrative Code Rule 64B2-15.001. The Challenged Rule Subsections provide the following: 64B2-15.001 Deceptive and MisleadingAdvertising Prohibited; Policy; Definition. . . . . (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it: . . . . (e) Coveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, posses qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialties recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each specialty requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that "The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine." A chiropractor may use on letterhead or in advertising a reference to any honorary title or degree only if the letterhead or advertising also contains in the same print size or volume the statement "Honorary" or (Hon.) next to the title. . . . . (i) Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board, or . . . . (l) Contains a reference to any other degree or uses the initials "M.D." or "D.O." or any other initials unless the chiropractic physician has actually received such a degree and is a licensed holder of such degree in the State of Florida. If the chiropractic physician licensee is not licensed to practice in any other health care profession in Florida, the chiropractic physician must disclose this fact, and the letterhead, business card, or other advertisement shall also include next to the reference or initials a statement such as "Not licensed as a medical doctor in the State of Florida" or "Licensed to practice chiropractic medicine only" in the same print size or volume. . . . . The authority cited by the Board as its "grant of rulemaking authority" for the Challenged Rule Subsections is Section 460.405, Florida Statutes, which provides: Authority to make rules.--The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. The Board has cited Sections 456.062 and 460.413(1)(d), Florida Statutes, as the "law implemented" by the Challenged Rule Subsections. Section 456.062, Florida Statutes, provides: Advertisement by a health care practitioner of free or discounted services; required statement.--In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place. Section 460.413(1)(d), Florida Statutes, provides the following ground for disciplinary action: "False, deceptive, or misleading advertising." While neither this provision nor any other specific provision of Chapter 460, Florida Statutes, imposes a specific duty upon the Board to define what constitutes "false, deceptive, or misleading advertising," the Board is necessarily charged with the duty to apply such a definition in order to carry out its responsibility to discipline licensed chiropractors for employing "false, deceptive, or misleading advertising."
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
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent's licensure and practice Respondent, Douglas N. Graham, is now, and was at all times material hereto, licensed as a chiropractic physician by the State of Florida, having been issued license number CH 0005483. At all times pertinent, Respondent operated two businesses associated with the practice of chiropractic. The first business, a typical chiropractic practice, was operated under the name Action Chiropractic, and was located in a small office building at 8095 Overseas Highway, Marathon, Florida. The second business, known as Club Hygiene, promoted a hygienic (nutritionally sound) lifestyle based on the consumption of uncooked fruit and vegetables, nuts and seeds. As part of the regime at Club Hygiene, fasting (to detoxify the body) was also promoted as an avenue to better health. Club Hygiene was located in Respondent's two-story home at 105 Bruce Court, Marathon, Florida. The ground floor, where the patients (or guests, as they were referred to at Club Hygiene) resided, consisted of three bedrooms, one bathroom, a small recreation room or area, and a porch for dining. Each bedroom contained two beds, allowing a maximum capacity of six guests. On the second level was Respondent's residence, which he shared with up to three "interns,"3 who cared for the guests. The instant case primarily involves concerns voiced by Petitioner regarding the care of two patients (K. E. and B. D.) at Club Hygiene in 1993. Regarding those concerns, Petitioner questioned whether Respondent's record keeping met minimum standards and whether Respondent's treatment met the prevailing standard of care. The K. E. affair On December 7, 1992, K. E. presented as a walk-in at Respondent's chiropractic clinic, Action Chiropractic, for a free consultation to address whether she could benefit from chiropractic care. At the time, K. E., a female, was 25 years of age (date of birth March 7, 1967), 5'6" tall, and weighed 105 pounds. On presentation, K. E. filled out a case history sheet which detailed her present and past symptoms, as follows: occasional dizziness and headache; occasional pain between shoulders; frequent constipation and difficult digestion, with occasional pain over stomach; occasional colds, ear noises, and sore throat; occasional skin eruptions (rash); occasional frequent urination; and, occasional cramps or backache and vaginal discharge, with frequent irregular menstrual cycle. History further revealed an injury to a "muscle in back" over 5 years previous. Personal habits reflected a light appetite, as well as light use of alcohol and drugs. Exercise and sleep habits were noted as moderate. When asked to describe her major complaints and symptoms, K. E. responded, "They said I had scoliosis when I was young. I'm curious if it still is there." The date symptoms were first noticed was stated to be "middle school." K. E.'s visit with Respondent lasted about twenty minutes, and included a brief spinal check, as well as a discussion regarding diet and nutrition. Respondent apparently told K. E. she would benefit from chiropractic care; however, neither the patient record nor the proof at hearing reveal the results of his examination, diagnosis, prognosis, or any treatment plan. Due to a lack of funds, K. E. declined further chiropractic care. At the time, or shortly thereafter, Respondent offered K. E. the opportunity to become an "intern" at Club Hygiene. The Internship Agreement entered into by Respondent and K. E. on January 18, 1993, provided as follows: The internship will last for a period of . . . 6 months . . . beginning on MONDAY, JANUARY 18TH , 1993 and ending on SUNDAY, JULY 18th , 1993. The company will provide the Intern with room, board, and the opportunity for hands- on, first-hand experience in the day-to-day operation of a hygienic retreat, supervision of fasting patients, and hygienic living. The Intern will provide the Company with their full-time efforts in the operation of the retreat in the manner determined by the company and in fitting with all reasonable rules and guidelines to be enforced by the company . . . . As an inducement to complete the internship, interns were apparently rewarded with a supervised fast at the end of their term. When K. E. joined the staff of Club Hygiene in January 1993, she was one of three interns who cared for the patients (guests). Also on staff, and working under Respondent's supervision, was Tim Trader (referred to as Dr. Trader in these proceedings), a unlicensed naturopathic physician.4 As an intern, K. E. changed the guests' linen, cleaned the guest bathroom, assisted with food preparation and, on a rotating basis with the other interns, dined with the guests. Each morning, K. E. also took the guests' blood pressure, and noted their vital signs. When K. E. began work at the club she was suffering health problems and, more particularly, stomach trouble (difficult digestion and pain) and constipation. To assist her, Respondent recommended various diets, and K. E., at Respondent's recommendation, moved from eating predominantly cooked foods to raw natural foods; however, her stomach troubles persisted, and by April 1993 her weight had dropped to about 92 pounds. In April 1993, on the advise of Dr. Trader and with the concurrence of Respondent, K. E. started a fast, water only, as a means to address her health problems. There is, however, no evidence that K. E. was physically examined prior to fasting, although at some point Respondent apparently suggested that "she had severe problems, including but not limited to, malabsorption syndrome, leaky gut syndrome, potential hiatal hernia and resultant malnutrition." Moreover, apart from the meager patient record of K. E.'s office visit in December 1992, there is no patient record or other documentation (evidencing patient history, symtomatology, examination, diagnosis, prognosis, and treatment) to justify the care (diet and fasting) offered K. E.5 K. E. fasted for two weeks and by the end of the fast her weight was approximately 87 pounds. During the fast, Respondent was frequently out-of-town; however, K. E. was supervised by Dr. Trader, who assured her vital signs were regularly taken.6 Following the fast, K. E.'s health continued to deteriorate, and her weight dropped to approximately 77 pounds. She became concerned and sought to consult with Frank Sabatino, D.C., another "hygienic physician." Ultimately K. E. was seen by Dr. Sabatino, and also a medical doctor; however, their findings are not of record. Moreover, there was no proof offered at hearing regarding the nature of K. E.'s disorder, whether (given the nature of the disorder) a fast was or was not appropriate, whether the fast caused or contributed to any injury, or what subsequent care (if any) K. E. required. As of the date of hearing, to a lay observer, her appearance evidenced good health. To address whether Respondent's treatment met the prevailing standard of care, Petitioner offered the opinions of two chiropractic physicians, Bruce I. Browne, D.C., and Robert S. Butler, Jr., D.C.7 It was Dr. Browne's opinion that the care Respondent offered K. E., including the supervision (albeit not personal) provided for her fasting, met the prevailing standard of care, but that Respondent failed to maintain patient records that justified the course of treatment. Dr. Butler agreed the patient records were inadequate, but was also of the opinion that Respondent's care failed to meet the prevailing standard of care because he authorized a fast without first performing a complete examination to resolve whether K. E.'s condition was appropriate for a fast, or stated otherwise, whether she was physically capable of withstanding the stress of a fast. Respondent admitted, at hearing, that he had not done any examination that would permit him to appropriately treat K. E. Given the proof, it must be concluded that Respondent failed to maintain patient records regarding K. E. that justified her course of treatment. It must also be concluded that by approving a fast without an adequate examination, Respondent's care of K. E. fell below the prevailing standard. The B. D. affair In or about early November 1993, B. D., a male, and resident of the State of Washington, telephoned Respondent to arrange a visit. At the time, according to Respondent, B. D. had been hospitalized for two or three weeks and "wanted out."8 Respondent agreed.9 B. D. arrived at Club Hygiene on November 7, 1993. At the time, he was 37 years of age (date of birth June 5, 1956), 5' 9 1/2" tall, weighted 115 pounds, and was in extremely poor health. He was also HIV positive, and had developed acquired immune deficiency syndrome (AIDS).10 On presentation, as reflected by his case history, B. D. expressed to Respondent the fear or thought that he was dying, and related the following major complaints and symptoms: anal infection, frequent diarrhea, weight loss, inability to assimilate food, fatigue, and loss of energy. At the time, B. D. had been fasting for 1 1/2 days. Examination confirmed the presence of an anal infection (thought to be fungal in origin) oozing clear fluid, and further noted, inter alia, an irritated nose and throat (slight redness), and that the upper cervical and lower lumbar were tender and fixated. Heart was noted to be clear and strong, and the lungs were noted to be clear in all four quadrants. The only recommendation reflected by the patient records relates to the observation concerning the upper cervical and lower lumbar, and reads as follows: "Daily light massage, muscle release, and gentle specific adjustments. P[atien]t concerned about overall health. Monitor closely." B. D. continued his fast (water only) until November 16, 1993 (when he consumed diluted apple and celery juice), and Respondent monitored his progress on a daily basis. (Petitioner's Exhibit 5). The progress notes reflect a weight loss from 115 pounds to 102 1/2 pounds during the course of the fast, but no untoward occurrence. B. D. apparently continued on a juice diet until November 23, 1993, when he was reintroduced to solid food. By that date, B. D.'s weight was noted to have dropped to 100 pounds. On November 24, 1993, B. D.'s blood pressure was noted as 88/62 and his pulse/respiration as 74/20. He was also noted to be fatigued and he rested all day. Between November 24, 1993, and November 28, 1993, the only entry appears to be for November 26, 1993, when B. D.'s blood pressure is noted to be 100/70s. By November 28, 1993, B. D.'s blood pressure was noted to have fallen to 66/50 and his pulse/respiration was noted as 80/20. No entry appears for blood pressure or pulse/respiration on November 29; however, there was an entry that B. D. was "experiencing problem breathing." A morning entry on November 30, 1993, noted "Ronci in all 4 Quads.-very slight. Breathing extremely labored." Blood pressure was noted as 62/42 and pulse/respiration as 80/28. Respondent's progress notes contain no entries for December 1, 1993. On December 2, 1993, the notes reflect "Breathing labored still." Pulse/respiration was recorded as 80/32; however, no blood pressure reading was noted. There are no entries for December 3, 1993. On December 4, 1993, blood pressure was recorded as 62/44 and pulse/respiration as 92/32. B. D. was noted to be very fatigued. No entries appear on December 5, 1993, and on December 6, 1993, at 5:00 p.m., B. D.'s blood pressure is noted as 62/52 and pulse/respiration as 100/weak. B. D. is again noted as very fatigued, and his weight is recorded as 95 1/4 pounds. No entries appear for December 7, 1993. At 11:08 p.m., December 7, 1993, Monroe County Emergency Services were summoned to Club Hygiene by a 911 telephone call, and they arrived at 11:15 p.m. The EMT's (emergency medical technician's) report reflects that for past medical history they were advised that B. D. was HIV positive, and for chief complaint they were advised "Breathing diff[iculty] - Family states onset 1 w[ee]k, getting progressively worse." At 11:20 p.m., blood pressure was noted as 109/53 and pulse/respiration was noted as 113/40. B. D. was transported to Fishermens Hospital and he was admitted through the emergency room at 11:36 p.m. B. D. remained at Fishermens Hospital until December 20, 1993, when he was transferred to Lower Florida Keys Health System for further studies and treatment. The discharge summary from Fishermens Hospital reveals his course as follows: This is 37 year old male who presents to the Emergency Room with dyspnea, weakness for the past several days, states he has been visiting from the state of Washington with his mother and became ill while in the area. His past medical history is negative for previous hospitalization accept (sic) for surgery for right inguinal hernia he states he was found to be HIV positive seven years ago but has been in good health until recently. Family history is negative for TB, diabetes, cancer, and cardiac disease, he has no known allergies, he is single, he has been a heavy abuser of alcohol in the past until four years ago. In the past he worked as an investment consultant with Japan, he does not smoke, he uses no drugs except an occasional marijuana. He states he knows no known risks for AIDS and does not know how he contacted it.11 Review of systems denies any illness prior to be the past few weeks, prior to this admission, he states he is confused regarding his past medical history and does'nt (sic) know how he became HIV positive. Physical examination revealed emaciated 37 year old male who is on a non rebreather oxygen mask. His skin is warm and dry, pupils are equal and regular and react normally to light in accomidation (sic). Teeth are negative. Tembranic membrane is normal. Neck is subtle there is no cervical adenopathy, thyroid is smooth without enlargement, he has rales in both lungs over the entire parietal with respirations of 36 per minute, no wheezing is heard, his pulse is 92, regular sinus rhythm, there are no murmurs. Abdomen is soft without masses. Heart tenderness, there was no peripheral edema. Penial pulses are present. He is alert, although he is slightly confused regarding his recent medical history. Reflexes were equal, there is no vocal motor weakness. * * * Chest x-ray at the time of admission showed pulmonary edema, possibly non-cardiac follow up chest x-ray showed evidence of diffuse infiltrates involving the right lung and also the left lower lobe consistent with pneumocystis carinii pneumonia with evidence of bilateral pulmonary edema. Follow up chest x-ray showed increased . . . desity in the right lung infiltrate and progression of infiltrates to the left mid and lower lung fields with air bronchograms and air alveolgrams Indicating alveolar infiltrates. EKG abnormal record to the extreme right axis deviation, poor R wave progression, sinus tachycardia. Patient was seen in consultation by Dr. Halterman in the event that his respiratory status required intubation, however he never did require this. * * * He was treated in ICU, he developed a pneumothorax, spontaneous pneumothorax and was seen by Dr. Mankowitz for insertion of a chest tube, because of failure to show improvement arrangements were made for transfer to Key West for further studies and treatment and possible Phentolamine, Phetamadine. His condition upon transfer is poor. Prognosis is poor. FINAL DIAGNOSIS: Respiratory failure, secondary to diffused alveolar infiltrates, probable pneumocystis carinii pneumonia. Spontaneous pneumothorax, adult immune deficiency syndrome. B. D. was admitted to Lower Florida Keys Health System, Key West, Florida, at 2:50 p.m., December 20, 1993. Thereafter, his condition deteriorated, and at 9:17 p.m., December 26, 1993, he was pronounced dead. The death summary notes an admitting and final diagnosis as follows: ADMITTING DIAGNOSIS: Pneumonia FINAL DIAGNOSIS: Pneumonia, HIV infection, respiratory failure, respiratory complications, emphysema, cachexia Cause of death, as stated on the Certificate of Death, was cardiopulmonary failure, as a consequence of pneumonia, due to acquired immune deficiency syndrome (AIDS). To address whether Respondent's care for B. D. met the prevailing standard of care, as well as whether his records conformed to the minimum requirements of law, Petitioner again called upon Doctors Browne and Butler. With regard to the adequacy of Respondent's patient records, Doctors Browne and Butler concur, and observe that with regard to B. D., the patient records failed to conform with the minimum requirements of law (they failed to include a diagnosis or a treatment plan) and, therefore, failed to justify the course of treatment. Given the record, the opinions of Doctors Browne and Butler regarding the inadequacy of Respondent's records, as they relate to B. D., are credited. With regard to whether Respondent's treatment met the prevailing standard of care, Doctors Browne and Butler offer somewhat differing opinions. Dr. Browne was of the opinion that Respondent's treatment met the prevailing standard until November 30, 1993, when B. D.'s breathing was noted to be extremely labored. At that time, according to Dr. Browne, prevailing practice required Respondent, as a chiropractor, to cease treating B. D. and to advise him to seek relief from another practitioner who possessed the requisite skill, knowledge, and facilities to treat his ailment properly. In Dr. Butler's opinion, Respondent should have called for a chest x-ray, and his failure to do so failed to meet the prevailing standard of care.12 Respondent explained his reaction to B. D.'s congestion and labored breathing, as follows: Q. What did you do, you noted he was congested? A. I suggested he go to a hospital. Q. And his response? A. He did not want to go to a hospital. He wanted to wait it out, and I said you can wait at my house. But if you go down hill, you have to go to a hospital. Q. Is that what happened? A. Yeah. He started to become ever so slightly synodic (sic), meaning that he was breathing but he wasn't getting lots. His fingertips were starting to turn blue. * * * Q. Did you discuss with him at this time a need to get additional care? A. I discussed it with him many times, because this was not, this was not in my league. It was not in my scope. It was not - I did not have access to the tools even if I knew how to treat a man at this point. Those are my concerns for Brian. And, finally, I said, Brian, look, you have to trust my judgment, you go to the hospital whether you want to or not. Q. Who called for the ambulance? A. I have no idea. * * * Q. Did you consider the need for an x-ray when you saw Brian's breathing become labored? A. No. Q. Did you make any suggestions to him at the time you noted his breathing had become labored? A. When it became labored? Q. Yes, sir. Not that I'm aware of saying anything to him. No. I don't believe so. (Transcript, pages 174, 175, and 177). Having considered the proof, Dr. Browne's opinion is accepted as most compelling and provides the most complete description of the breadth of Respondent's obligations, as well as the scope of his breach. On the other hand, Dr. Butler's opinion (that the circumstances required a referral for chest x-ray) has not been rejected; however, Respondent's failure to refer for x-ray (when he realized B. D.'s condition was beyond his knowledge or the methods of treatment available to him) is viewed as a failing subsumed within his breach of the prevailing standard which required that Respondent cease treating B. D. and refer him to another physician who possessed the requisite skill, knowledge, and facilities to treat his ailment properly.13
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds the Respondent committed the offenses alleged in Counts I through VI of the Administrative Complaint, and which imposes, as a penalty for such violations, a suspension of licensure for a term of one (1) year, followed by a two (2) year term of probation (subject to such terms as the Board may reasonably impose), and an administrative fine of $1,000. DONE AND ENTERED this 5th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1998.
