Recommendation The action of the Board in denying the application of Petitioner was correct and should be affirmed. DONE and ENTERED this 7th day of August, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 7th day of August, 1984. COPIES FURNISHED: Dr. George D. Skiadas 1460 Gulf Boulevard, #1112 Clearwater, Florida 33515 John Griffin, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Carlos De La Fe, M.D., is now and was at all times material to these proceedings, a licensed physician in the State of Florida having been issued License No. ME 0017825. On January 15, 1985, the Board of Medical Examiners issued a final order wherein disciplinary action was taken against the Respondent's license to practice medicine. The order stated in part that: it is hereby ordered and adjudged that Respondent be reprimanded. Respondent's license to practice medicine in the State of Florida shall be placed on probation for a period of three years under the following terms and conditions: * * * (d) Respondent must take and pass within six months part three of the examination by the National Board of Medical Examiners in lieu of the first 50 hours of continuing medical education. The Respondent applied to take Part III of the National Board Examination but was notified in March, 1985, by the National Board that he was not eligible to sit for the examination. On May 2, 1985, the Respondent informed the Florida Board of Medical Examiners that he was not eligible to take the National Board's test. At a meeting held by the Board of Medical Examiners on June 1, 1985, the Respondent was present and agreed to take and pass Part II of the Flex examination in lieu of the National Board of Medical Examiner's test which he was previously ordered to take and pass in the Final Order of January 15, 1985. The Flex Examination was scheduled for mid-June, 1985. Although Respondent agreed to the substitution of examinations, he indicated to the Board that he might not be able to adequately prepare for the examination in such a short period of time. Respondent took Part II of the Flex examination on June 12, 1985, but failed to pass it. Respondent received a score of 71. Flex examinations are offered every six months in June and December. The Flex Examination was offered in December, 1985 and June, 1986, but the Respondent failed to take either examination. The Respondent attempted to apply to take the December, 1985 examination, but was beyond the registration deadline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered imposing a reprimand, a $500 administrative fine, and suspending Respondent's license to practice medicine unless and until he successfully passes the Flex Examination Part II. DONE and ORDERED this 20th day of November, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1851 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Rejected as subordinate. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Rulings on Proposed Findings of Fact Submitted by the Respondent (None submitted) COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert K. Estes, Esquire 717 Ponce de Leon Blvd. Suite 232 Coral Gables, Florida 33134 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings E. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 3233 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Petitioner committed the violation alleged in the Administrative Complaint dated April 2006, and, if so, the penalty that should be imposed.
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: The Department is the state agency charged with the responsibility for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity charged with the responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Whitney was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 4840. Dr. Whitney's address of record is 1011 North Federal Highway, Unit 106, Hallandale Beach, Florida 33009. Dr. Whitney has been a licensed chiropractic physician in Florida since January 1985 and has never had disciplinary action taken against his license. On or about September 7, 2001, Williston Orthopedic Rehab, Inc. ("Clinic"), opened in Williston, Florida. Dr. Whitney was the medical director of the Clinic; Robert Andrews was the owner of the Clinic. Mr. Andrews had worked with Dr. Whitney in his chiropractic practice for more than 10 years. A sign was erected in front of the Clinic identifying the facility and the services provided. Dr. Whitney's name, "Dr. Robert Whitney," was prominently shown on the sign, and he was identified as "Medical Director." The services provided by the Clinic, as shown on the sign, were as follows: Automobile Accidents - Injuries Work Related Injuries Physical Therapy Alternative Medicine Chiropractic Care Massage On or about September 7, 2001, several photographs were taken of Dr. Whitney and others standing in front of the sign. The photographs appeared in the September 13, 2001, edition of both The Williston Pioneer newspaper and of the Williston Sun Suwannee Valley News newspaper, together with articles about the new Clinic, its staff, and the services offered. Dr. Whitney was identified in one article as a "Doctor of Chiropractic," and Mr. Andrews was identified in the same article as the "practice administrator." Dr. Whitney had no ownership interest in the Clinic and had no role in the administration of the Clinic. His primary duty as medical director was to review charts, and he worked at the Clinic part-time. Mr. Andrews ordered the sign that was placed in front of the Clinic, and Dr. Whitney was not consulted about the information that was to be placed on the sign or asked to approve the contents of the completed sign. Dr. Whitney did not see the sign prior to arriving at the Clinic on or about September 7, 2001, to have his photograph taken for the newspaper stories. As soon as Dr. Whitney saw the sign, he notified Mr. Andrews that it failed to identify him as a chiropractic physician. Dr. Whitney immediately told Mr. Andrews to have the sign modified to include the designation "D.C." after his name. Mr. Andrews agreed to modify the sign, but he failed to have the sign corrected. The sign remained in front of the Clinic for several weeks before it was removed. Dr. Whitney left his position at the Clinic several weeks after he asked Mr. Andrews to correct the sign. The sign in front of the Clinic was misleading in that it did not, in any manner, identify Dr. Whitney as a chiropractic physician. He was identified only as "Dr. Robert Whitney," the "Medical Director" of the Clinic. The inclusion of "chiropractic care" among the services provided at the Clinic is not sufficient, standing alone, to provide notice to the public that Dr. Whitney is a chiropractic physician. Although Dr. Whitney did not disseminate or cause the dissemination of the misleading information in the sign, the sign remained outside the Clinic for several weeks with his apparent acquiescence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Robert Whitney, D.C., guilty of having violated Section 460.413(1)(d), Florida Statutes, and imposing a penalty consisting of a $500.00 administrative fine and a letter of concern. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 31st day of July, 2007.
The Issue The issues are whether Petitioner has sufficiently completed the requirements necessary to receive a license to practice orthotic fitting from the Board of Orthotists and Prosthetists and whether the Petitioner has violated section 468.809, Florida Statutes, by practicing orthotics without a license or registration.
Findings Of Fact 1. The two rules governing the requirements for licensure as on orthotic fitter in the state of Florida are found in section 469.803(5)(c), Florida Statutes (2010), and Florida Administrative Code Rule 64B14-4.110(1)(b). Section 468.803(5)(c) requires: (c) to be licensed as an orthotic fitter the applicant must pay a license fee not to exceed $500 and must have: A high school diploma or its equivalent; A minimum of 40 hours of training in orthotics education, as approved by the board; Two years of supervised experience in orthotics acquired after completion of the required education, as approved by the board; and Completed the mandatory courses. Petitioner requested information from the Board regarding the requirements for licensure and received a publication containing both chapter 468, Florida Statutes, Part XIV, and rule 64B14. He completed the prerequisite education required by section 468.803(5)(c), on June 22, 2009. However, Petitioner testified that he only reviewed the requirements identified in section 468.803(5)(c) and did not consider the definition of "experience" contained in rule 64B14-4.110(1), for applicants for licensure as an orthotic fitter. Florida Administrative Code Rule 64B14-4.110(1)(b) construes supervised "experience" to require an applicant to complete two years of experience in orthotics under the supervision of a Florida licensed orthotist. The two years of experience may only begin accruing after the applicant has successfully completed the requisite education courses. Petitioner applied for a license in orthotic fitting on November 22, 2010, only 17 months after the completion date of his educational courses. Assuming Petitioner started gaining experience immediately upon completion of his education courses, Petitioner was still seven months shy of the two years of experience required to obtain a license as an orthotic fitter. Petitioner testified at hearing regarding the orthotic experience gained prior to applying for licensure. According to his testimony, his experience consisted of activity more accurately described as assistance than experience. The experience described was limited to helping patients stand up, holding a measuring stick, assisting with paperwork, and explaining paperwork to the patient. Petitioner’s role involved little more than observing and occasionally assisting a licensed physical therapist. This is surely not what is meant by “experience in orthotics under the direct supervision of a Florida licensed orthotist,” as contemplated by rule 64B14- 4.110(1)(b). The assistance provided by Petitioner was performed under the supervision of a licensed physical therapist. While his actions, as described at hearing, did not meet the requirements for supervision specified by rule 64B14-9.110, they also did not rise to the level of unlicensed activity.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Board of Orthotists and Prosthetists denying Petitioner’s application for licensure as an orthotic fitter. DONE AND ENTERED this 2nd day of August, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2011. COPIES FURNISHED: Frank Edward Maloney, Jr., Esquire Macclenny City Attorney 445 East Macclenny Avenue, Suite 1 Macclenny, Florida 32063-2217 Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-6536 Bruce Deterding, Executive Director Board of Orthotists and Prosthetists Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Nicholas Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The purpose of this proceeding is to determine whether Respondent violated section 460.413(1)(i), Florida Statutes (2013), by committing sexual misconduct, as alleged in the Administrative Complaint. In the event that a violation is established, then the appropriate penalty to be imposed also must be established.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and upon the entire record of this proceeding, the following factual findings are made: Petitioner is the state agency charged with the regulation of the practice of chiropractic medicine pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. Respondent, Steven Read, D.C., is a licensed chiropractic physician in the State of Florida, and holds license CH 5979. Respondent is the owner of Ortega Chiropractic Clinic (Ortega) in Jacksonville, Florida, and his address of record is 5367 Ortega Boulevard, Jacksonville, Florida 32210. Respondent has been practicing chiropractic medicine in the Jacksonville area for 27 years. He has been running his own office since 1996. Respondent has no prior discipline against his license. Ortega is located in a two-story building. The downstairs includes a waiting room and check-in area, the office manager’s office, and three patient examination rooms. Upstairs, there is a large rehabilitation room. Adjacent to the rehabilitation room is a small reception area and Respondent’s office. The rehabilitation room includes three examination tables, as well as several pieces of exercise equipment used to assist patients with stretching and strength-building exercises. Patients routinely receive treatment in the rehabilitation area as their condition warrants. Ortega has what was described as an open-door policy when it comes to examination rooms. In other words, with the exception of when a patient is in an examination room changing clothes, the examination room doors remain open during treatment. This policy was in place at the time of the events giving rise to this case. At the time of her initial visit to Ortega, patient K.W. was a 52-year-old female. She was in a car accident on or about April 4, 2014, and presented to Ortega on April 7, 2014, with pain in the neck, right shoulder, lower back, right hip, and right buttocks, along with persistent stiffness and pain in her lower right back and right posterior thigh. She described the constant pain as sharp and shooting, and stiffness with aching, at a level of 6 out of 10. K.W. had nine treatments at Ortega related to her post-accident pain. Typically, she would receive electric muscle stimulation, moist heat, and massage therapy from a massage therapist. Respondent would provide chiropractic adjustments. Those adjustments were spinal adjustments, including her cervical spine, thoracic spine, and lumbar spine, as well as the sacroiliac joint, and were done with K.W. lying on her back, stomach, and side. During each visit, Dr. Read examined K.W., including performance of palpation and range of motion assessments, and performed an adjustment. K.W.’s condition improved over the course of her treatment with Dr. Read. By all accounts, the first eight appointments consisted of the treatments described above and were unremarkable. K.W.’s ninth appointment was April 23, 2014. Her appointment was at 8:30 in the morning. K.W. was wearing sweatpants and a tee shirt. Consistent with her normal practice, she was not wearing underwear. Dr. Read was late coming to the office because of an issue related to his daughter’s health. Dr. Read’s massage therapist, Clarissa (then Ragsdale) Brown, began K.W.’s treatment that day with electric muscle stimulation, moist heat, and massage therapy. Dr. Read then came in, apologized for his tardiness, and began palpating K.W.’s glute muscle in her right buttocks. He worked on the glute muscle into the thigh both over and under her sweatpants. Patient K.W. had pulled down her sweatpants on the right-hand side to show Dr. Read the location of the pain in her buttocks. While he was working on her glute muscle, K.W. believed that Respondent “swiped across my vagina lips a couple of times.” K.W. could not say whether what she felt was actually Dr. Read’s hands or whether it was contact between her body and her sweat pants. Either way, she considered the contact to be accidental. K.W. did not say anything to Dr. Read about this perceived contact. At this visit, K.W.’s pain level had improved. As a result of this improvement, Dr. Read asked K.W. if she would like to begin active strengthening of her lower back on the flexion- extension machine in the rehabilitation center. She indicated her willingness to do so, and the two of them left the examination room and walked upstairs to the rehabilitation room. As they walked up the stairs, Respondent noticed that K.W. was moving slowly going up the stairs. He asked her what was wrong, and K.W. told him that she had a pulling feeling in the back of her right leg. The pulling that K.W. described was a new symptom to Dr. Read, and concerned him. He told her he needed to assess this symptom before they went further. Dr. Read testified that he had K.W. lie face down on one of the examination tables to assess the pulling in her leg. In his assessment, Respondent wanted to differentiate between a sciatic nerve problem from the low back and a hip pathology. He also wanted to rule out a deep vein thrombosis (DVT), which can be quite dangerous. As part of his assessment, Dr. Read performed a Homan’s test to check for DVT. To perform a Homan’s test, K.W. lay prone on the table and Dr. Read rolled up her right pant leg and applied pressure to the calf. He also forcibly flexed the leg and dorsiflexed the ankle. The test involves stretching the calf and squeezing it: if the patient had a DVT, heat would most likely be detected, as well as excruciating pain. Dr. Read also performed a FABRE Patrick test, which is for sacroiliac joint pathology. For this test, K.W. was lying on her back and Respondent flexed the right leg then abducted the right hip joint, while externally rotating the right hip. Dr. Read described it as being like sitting Indian-style, except that the patient is lying on their back. He would then flex one leg up toward the chest and then rotate the leg out, while at the same time applying downward pressure to the knee. If the patient has a hip-joint pathology, he or she would experience sharp pain in the hip as a result of this move. Both the existence of the pulling sensation in K.W.’s leg and the performance of the Homan and FABRE Patrick tests are noted in Dr. Read’s medical records for April 23, 2014. Both tests were negative, although tenderness was noted for K.W.’s right posterior and lateral thigh. Dr. Read had no knowledge that K.W. believed he had touched her inappropriately at the time he dictated and signed his patient records for this visit. During these tests, K.W. thought that, once again, Dr. Read had touched her vaginal area. However, she could not state whether it was her sweatpants or Dr. Read’s hand that actually made contact. She testified that at one point, her sweatpants became uncomfortable and twisted, and were getting pulled and tugged in conjunction with the assessment that Dr. Read was performing. K.W. believed that in all, there were five to six contacts of short duration. K.W. testified that when she and Dr. Read entered the rehabilitation area, she lay on one of the examination tables face down, and Dr. Read began working on her glute muscle again, separated her butt cheeks with his fingers and thumb, and touched her vaginal area a couple of times. She felt a light brushing sensation, but, as noted above, could not say that it was actually his hand that she felt. She still considered the perceived contact as unintentional. K.W. also testified that Dr. Read asked her to turn over, and started working on the lower abdomen down into the groin area and the inner thigh. She testified that he again ran his hand across her vagina, and massaged her upper thigh and leg. She claimed that because her sweatpants had become twisted, when Dr. Read pulled her leg up, her leg came out of her sweatpants. At this point, she interpreted the contact with her vaginal area as intentional. K.W. did not tell Dr. Read that she thought he had touched her inappropriately. She testified that he came around to the front of her and bent over like he was going to kiss her. At that point, she said “no, don’t go there.” According to K.W., she asked him if he was finished, and he said yes, so she sat up, put her leg back into her pants, and engaged in “small talk.” She testified that Dr. Read asked her if she would like to see his office, and she said sure. While she was in the reception area outside his office, she testified that he apologized for coming on to her, and she again told him “not to go there.” After this exchange, she walked out and down the stairs to sign out. Dr. Read, on the other hand, testified that as he was finishing the FABRE Patrick test, K.W. looked startled and got up off the table, saying “don’t go there.” He also was startled by her reaction, and apologized if she felt uncomfortable. He did not recall her leg becoming separated from her sweatpants, but stated that the orthopedic tests that he performed could be uncomfortable, and thinks that the FABRE Patrick maneuver was what she was referencing by her comment. He also did not recall her vagina ever being exposed, but thought if it happened, it would be when she lowered her sweatpants to show him the location of her pain. Dr. Read explained that he apologized to her because he would apologize to any patient who was uncomfortable at any time during an examination. Palpation as part of the assessment of K.W.’s pain would have involved pretty much the entire buttock area, but would not have gotten close to the vagina without a clothing barrier. He denied ever engaging in or attempting to engage in any type of inappropriate conduct or sexual contact, and specifically denied attempting to kiss K.W. Dr. Read further testified that after performing the Homan and FABRE Patrick tests, he told K.W. that in light of her right leg pain, she would not use the flexion-tension machine as planned, but would return to passive treatment. K.W. assented. As they left the rehabilitation room, he went toward his office to unlock it. K.W. asked whether that was his office too, and he replied that it was, and that Ortega rented the whole building. After unlocking the door, he stepped to the side, and K.W. entered the reception area. As he entered his office, he repeated that they were done for the day and he would see her the following day. He stayed upstairs and K.W. went downstairs to check out. K.W. stated that while she was checking out, Ms. Brown made the comment that she did not realize that K.W. was there. Ms. Brown, on the other hand, said that K.W.’s checkout was routine and that K.W. did not say anything to her. Ms. Brown also testified that she saw Dr. Read go to the rehabilitation area with K.W. and that it is not unusual for Dr. Read to take patients to the rehabilitation area. K.W. returned to Ortega for her next scheduled appointment on April 25, 2014. At that time, she told Dr. Read that she did not feel comfortable with him and would not be seeing him any longer. Dr. Read told her that under those circumstances, it was best that she saw someone else, and that Ortega would facilitate sending her records to another chiropractor. Although she told him she was not comfortable, at no time did K.W. ever express to Dr. Read that she thought he had touched her inappropriately. She did not say anything to Dr. Read, his office manager Pam Mobarak, or Clarissa Brown that indicated anything inappropriate occurred at the April 23, 2014, office visit. Approximately one month after the April 23, 2014, appointment, K.W. filed a complaint with the Department. Four months after the appointment, she filed a complaint with the Jacksonville Sheriff’s Office. In conjunction with the Sheriff’s Office’s investigation, K.W. participated in a controlled call in September 2015. During this telephone call, there was an officer on the line giving K.W. questions to ask Dr. Read. The call was answered by Dr. Read’s office manager, Ms. Mobarak, who eventually transferred the call to Dr. Read. During the call, K.W. attempted to get Dr. Read to see her outside of the office. Dr. Read declined to do so. When she asked to see him, he inquired whether she was asking to see him professionally. The transcript of the controlled call does not indicate that Dr. Read ever admitted doing anything inappropriate with respect to K.W. At most, he tells her that it would not be advisable to see her given her pending complaint with the Department. The Sheriff’s Office did not file charges against Dr. Read. This case represents the classic “he said/she said” scenario where the demeanor and credibility of the witnesses is key. No testimony was presented by the Department to establish the scope of chiropractic practice or the proper scope of a generally accepted chiropractic examination. Dr. Read testified that while a woman’s private areas are in close proximity to those areas being examined and adjusted, there would be no reason to touch a woman’s vagina. After hearing the testimony of all of the witnesses presented and comparing the testimony with the written documents admitted into evidence, there is no clear and convincing evidence that Dr. Read touched K.W. inappropriately, whether incidentally or on purpose. K.W. acknowledged that she could not really tell what was touching her. It was just as likely that what she felt was the slide of cloth as her sweatpants moved against her skin. Moreover, her testimony conflicts with not only Dr. Read’s testimony but also Ms. Brown’s. Dr. Read, Ms. Mobarak, and Ms. Brown all testified regarding Ortega’s open-door policy. K.W., on the other hand, could not remember whether the examination room was open or closed. Similarly, the rehabilitation room, while upstairs, was clearly equipped so that multiple patients could be seen at one time. While there was no other person upstairs during K.W.’s treatment in the rehabilitation area, there was nothing to prohibit staff or others from entering or leaving the area. It is inconceivable that Dr. Read would initiate the type of inappropriate touching K.W. described in a rehabilitation room having easy access or an examination room with an open door. While K.W. testified that Ms. Brown commented at check-out that she did not realize K.W. was there, Ms. Brown testified that she observed K.W. going upstairs with Dr. Read, and that it was routine practice for patients to go upstairs for rehabilitation exercise. K.W.’s testimony was not convincing. She considered at least some of the perceived touching as unintentional, and at best could not confirm that it was in fact Dr. Read touching her. While she may have believed something or someone was touching her, her demeanor while testifying about this very intimate type of contact seemed almost casual, as opposed to exhibiting any type of distress or concern with the subject matter. She did not appear to have any real concern about much of the incident. Similarly, her testimony that she engaged in “small talk” with Dr. Read after his examination of her in the rehabilitation room is not consistent with what would be expected from a patient who believes that her physician has just touched her inappropriately or made a pass at her. Dr. Read’s testimony, on the other hand, was direct, consistent, and consistent with his medical records, which were dictated and signed at a time when he had no idea that K.W. perceived that he had touched her inappropriately. His description of the events is simply more plausible than K.W.’s and more believable. It is found that Dr. Read did not, accidentally or otherwise, touch K.W.’s vagina during his examination of her on April 23, 2014. It is found that Dr. Read did not engage or attempt to engage K.W. in sexual activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of September, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2016. COPIES FURNISHED: Kevin Mercer, Esquire Wicker Smith Suite 2700 50 North Laura Street Jacksonville, Florida 32202 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Candace Rochester, Esquire Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Anthony B. Spivey, DBA, Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 (eServed)
The Issue Whether Petitioner's challenge to the failing grade he received on the physical diagnosis portion of the May 2001 chiropractic licensure exam should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a chiropractic doctor who has been licensed to practice in the state of Ohio since 1993. He maintains an active practice in Ohio, and he currently sees approximately 190 patients per week. Petitioner filed an application with the Department for a Florida chiropractic license. Applicants for licensure are required by statute and rule to take the licensure exam developed by the Department. Petitioner took the exam in May 2001. The exam consists of four parts, three practical and one written. The practical parts test the applicant on physical diagnosis, X-ray interpretation, and technique; and the written part tests the applicant on the Florida laws and rules regulating chiropractors. An applicant for licensure must receive a score of 75 on each part to pass the examination. Petitioner passed the written part of the exam as well as the X-ray and technique practical parts; however, on the physical diagnosis part, he received a failing score of 70. As a result, he failed to pass the exam and may not receive a Florida chiropractic license.2 The physical diagnosis part of the exam consisted of 26 tasks which the applicant was required to perform within the allotted time of 70 minutes. The physical diagnosis part of the chiropractic licensure exam is developed by a team of consultants retained by the Department. The team consists of licensed chiropractic doctors with varied practices and at least ten years of experience. The team derives the exam questions from case studies from prior administrations of the exam. The team meets on several occasions to refine the case studies and rework the questions. The team also develops and refines the answers to the questions based upon their research and a consensus reached after debate. After the exam questions are finalized and before the administration of the exam, the Department holds standardization sessions which all of the examiners are required to attend. The purpose of the standardization sessions is to ensure that each examiner knows what is a correct answer and what is an incorrect answer for each question. This, in turn, ensures consistency in the evaluation and grading of all applicants. The examiners who evaluated Petitioner's performance on the physical diagnosis exam attended all of the standardization sessions. The applicant's performance of each task in the physical diagnosis part of the exam is independently graded by two examiners. The purpose of the independent grading is to eliminate any potential bias in the grading and to increase reliability in the scoring of the exam. The examiners independently assigned a letter score -- A, B, or C -- to the applicant's performance on each task. A score of "C" represents full credit for the task. A score of "B" represents partial credit for the task. A score of "A" represents no credit for the task. Where the examiner awards less than full credit, he or she provides a notation on the score sheet regarding what the applicant failed to do properly. The letter score was translated into a numerical score based upon the pre-determined point value for the task. Each of the tasks at issue in this proceeding -- numbers 13, 14, 18, 21, and 22 -- were worth 4 points each. A grade of "C" for these tasks translates into a raw score of 4 points; a grade of "B" on these tasks translates into a raw score of 2 points; a grade of "A" on these tasks translates into a raw score of 0 points. The raw scores resulting from each examiner's grades are totaled separately and, then, those totals are averaged. The averaged score is what is reported to the applicant as his or her final score on the physical diagnosis part of the exam. As noted above, Petitioner received a score of 70 on that part. Task 13 (S1 Dermatome) Task 13 contained two sub-tasks. To receive full credit for Task 13, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the S1 dermatome, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 13. Thus, Petitioner received only two of the possible four points for that task. A "dermatome" is an area of the body surface served by a particular spinal nerve. The S1 dermatome is the area of the body surface served by the S1 nerve. The S1 dermatome encompasses an area which begins on the back of the leg below the calf, runs down the back of the foot over the heel, along a portion of the bottom of the foot to the toes, and then around the outside (lateral) portion of the foot. The expert testimony and the scientific texts introduced in this case vary on the exact portion of the bottom of the foot included in the S1 dermatome. Some indicate that it encompasses only that area from the outside of the foot to the fourth or fifth (little) toe, while others indicate that it extends from the outside of the foot all the way to the midline of the foot at the third (middle) toe. The common element in all of the expert testimony and the scientific texts is that the location of the S1 dermatome on the bottom of the foot is towards the outside of the foot rather than the inside (arch) of the foot. The S1 dermatome is tested by touching the dermatome with an instrument to determine whether the patient exhibits any sensory reaction, i.e., whether and to what degree the patient feels the touch. The dermatome can be tested without tracing its entire area; however, in order to map out the entire dermatome, its entire area would be tested. On the video tape of Petitioner's performance of Task 13, it appears that he is attempting to test the S1 dermatome, rather than demonstrating its area as the task requires. Petitioner can be heard telling the patient that he is going to "test" the dermatome level by touching the patient's foot to see if the patient can feel it. Immediately after these comments, one of the examiners (Dr. Weiss) can be heard on the video tape telling Petitioner to "trace the path of S1." Dr. Weiss also can be heard asking Petitioner to show the examiners where S1 starts and where it goes. Petitioner performed Task 13 by making a single straight-line motion starting on the back of the leg below the calf, then proceeding downward and under the foot, and ending near the big toe. Petitioner repeated the movement, again ending near or even slightly to the inside (arch side) of the big toe. By making only a single straight-line motion along the bottom of the foot, Petitioner failed to demonstrate the area of the S1 dermatome. At most, Petitioner demonstrated the line separating the S1 dermatome from the L5 dermatome, which is adjacent to the S1 dermatome on the bottom of the foot. As noted above, however, the S1 dermatome extends no further than the mid-line of the foot and therefore the line demonstrated by the Petitioner could not have been the boundary of the S1 dermatome. Even if Petitioner understood the task as "test the S1 dermatome" rather than demonstrate its area, the weight of the evidence shows that Petitioner did not correctly test the dermatome along the bottom of the foot. As discussed above, Petitioner's instrument appeared to travel along the inside (arch) of the bottom of the foot rather than the outside of the bottom of the foot. The S1 dermatome does not extend inward on the bottom of the foot beyond the mid-line and it certainly does not extend to the big toe. The notes written by the examiners on the grading sheets indicate that the "B" grade that Petitioner received on Task 13 was based upon the his tracing of an incorrect area on the bottom of the foot. The notes written by Dr. Weiss, the examiner who testified at the hearing, stated "traced wrong area under foot." The notes written by the other examiner similarly stated "S1 under foot incorrect." The notes were corroborated at hearing by the videotape and the testimony of Dr. Mathis. Because Petitioner failed to properly demonstrate the S1 dermatome, the examiners properly gave him only partial credit on Task 13. Task 14 (Acquilles Reflex Test) Task 14 contained two sub-tasks. To receive full credit for Task 14, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the Achilles reflex test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 14. Thus, Petitioner received only two of the possible four points for that task. Petitioner tested the Achilles reflex by lying the patient face down (prone) and then tapping a reflex hammer directly on the Achilles tendon of each foot. Petitioner did not dorsiflex either foot before striking the tendons. The taps elicited a reflexive response which can be clearly seen on the video tape of Petitioner's exam. Had the tap not elicited a response, Petitioner testified that he would have pursued alternative means of testing the reflex. The expert testimony and scientific texts introduced at the hearing show that there are several alternative ways to test the Achilles reflex, all of which are professionally accepted. One way is to tap directly on the Achilles tendon as Petitioner did. This can be accomplished with or without dorsiflexing the foot. The Department was looking for the candidate to pre-stress the tendon by dorsiflexing the foot prior to striking the tendon with the reflex hammer. The evidence does explain why dorsiflexing the foot would be the preferable method of testing the Achilles reflex under the facts of the case study. Another way to test the Achilles reflex is for the doctor to dorsiflex the foot by pressing his or her fingers against the ball of the patient's foot and then tap his or her fingers with a reflex hammer. Where the ankle is swollen or it is too painful to strike the tendon itself, this method of eliciting the reflex is preferred. The case study on which Task 14 was based indicated that the patient had "severe pain and swelling in the right calf, ankle, and heel." The case study did not indicate that the patient had a ruptured Achilles tendon, but that injury could not be ruled out based on the case study. In such circumstances, the expert testimony and scientific texts indicate that the preferred method of checking Achilles reflex would not be striking the tendon itself. Task 18 (X-Ray of 5-year Old) Task 18 contained two sub-tasks. To receive full credit for Task 18, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to answer the question of whether he or she would X-ray a 5-year-old child with certain symptoms, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 18. Thus, Petitioner received only two of the possible four points for that task. The question required applicants to answer "yes" or "no." They were not permitted to explain their answer. The question provided only limited information regarding the child and his medical history. The question did not state whether the parent had signed a consent form authorizing treatment of the child. Without parental consent, it would not be proper for the doctor to render any medical treatment to the child. It would have been reasonable for Petitioner to assume that any necessary consent forms had been signed. Petitioner did not request any clarification on this point from the examiners nor did his response during the exam mention the lack of a signed parental consent form. Instead, Petitioner explained that he would not X-ray the child because of the apparent severity of the child's injury and a concern that the child may have an injury "that wouldn't be chiropractic in nature." Based on these concerns, Petitioner stated during his exam that he would refer the child to his family physician. At hearing, Petitioner indicated that his concern regarding the severity of the child's injury was based upon the case study which indicated that the child was holding his neck. Petitioner considered this to be Rust's Sign. Petitioner did not request any clarification from the examiners regarding the manner in which the child was holding his neck. The expert testimony and scientific texts introduced at hearing indicate that Rust's Sign is most commonly exhibited by the patient supporting his or her head by holding the chin, rather than the neck. The patient holds his or her head to compensate for some muscular, ligament, or disk damage, which causes the neck to be unable to support the head. Even if Petitioner construed the limited case history provided to be evidence of Rust's Sign, the proper course of treatment would not have been to refer the patient to a family physician as Petitioner stated during his exam. Instead, the expert testimony and scientific texts indicate that the proper course of treatment would have been to immediately stabilize the neck with a cervical collar or something similar and immediately perform imaging (e.g., X-ray) to determine the source of the injury. Petitioner is not entitled to additional points for Task 18. Task 21 (Gluteus Maximus Test) Task 21 contained two sub-tasks. To receive full credit for Task 21, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the second sub-task. Only the first sub- task, which required the applicant to perform the gluteus maximus muscle test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 21. Thus, Petitioner received only two of the possible four points for that task. The gluteus maximus muscle is the largest muscle in the body and is largely responsible for the shape of the buttock. It extends and laterally rotates the hip joint. The muscle is tested by having the patient lie face down (prone) with his or her knee bent 90 degrees or more. The importance of bending the knee is to isolate the muscle. While the doctor holds the patient's hip to stabilize it and applies downward pressure to the back of the thigh, the patient attempts to raise his or her leg. The video tape of Petitioner's exam shows that Petitioner had the patient in the prone position. Petitioner did not have the patient bend his knee. Nor did Petitioner have the patient lift his leg up. Instead, the tape shows Petitioner pulling the leg outward as the patient attempted to move the leg inward. Petitioner did not rotate the leg. The expert testimony and scientific texts introduced at hearing show that the test performed by Petitioner was the proper test for the gluteus medius or gluteus minimus rather than the gluteus maximus. This evidence corroborates the notation on one of the examiners' score sheet which stated "did gluteus med[ius]?" And see Endnote 1. Indeed, it appears from the video tape that Petitioner misunderstood the task he was to perform. When Petitioner first read the question for Task 21, he correctly read the two tests he was to perform, gluteus maximus and soleus. Petitioner then performed the soleus test. Then, he could be heard saying "gluteus medius" as if to remind himself what test he was to perform. Immediately after that comment, one of the examiners suggested that Petitioner reread the question. He did so, correctly reading "gluteus maximus." Petitioner then set up the table and got the patient situated. Then, one of the examiners asked which muscle test Petitioner was going to perform. He stated "gluteus medius." Petitioner then stood over the patient for a minute or so, apparently thinking to himself, and then performed the test as described above. Any confusion regarding the test to be performed was not a result of the form of the examination or the conduct of the examiners. The examination clearly indicates that the test to be performed is gluteus maximus. The words "gluteus maximus" are in bold type. The examiners attempted to clarify Petitioner's confusion by giving him an opportunity to correct himself after he first misstated the test to be performed. Task 22 (Trendelenburg Test) Task 22 required the applicant to perform two distinct tests and state what he or she is looking for in each test. To receive full credit for Task 22, the applicant was required to properly perform each test and state what he or she is looking for in each test. The only dispute in this proceeding is whether Petitioner's statement of what he was looking for in the Trendelenburg test was the correct response. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 22. Thus, Petitioner received only two of the possible four points for that task. The Trendelenburg test is used to evaluate the ability of the hip abductors, primarily the gluteus medius, to stabilize the pelvis on the femur. The test is performed by having the patient stand facing away from the doctor. The patient then lifts one of his or her legs. A positive sign is where the pelvis/hip of the lifted leg tilts downward instead of rising. Reference to the pelvic/hip tilt was what the Department considered to be a correct answer for Task 22. When performing the Trendelenburg test, the doctor should stand behind the patient with his or her hands on the patient's hips. This placement of the hands serves two purposes. First, it allows the doctor to feel even slight movement of the pelvis/hip in order to detect even a mildly positive sign. Second, it allows the doctor to stabilize the patient in the event that the patient loses his or her balance. The video tape of Petitioner's exam shows that he correctly performed the Trendelenberg test. He was positioned behind the patient with his hands on the patient's hips. He directed the patient to raise his right leg. Then, he stated that if the patient were to fall over, there would be a gluteus medius problem. Dr. Weiss requested clarification from Petitioner, specifically asking him what he was looking for. Again, Petitioner stated that the patient would fall over or lose his balance. Petitioner never used the word "lurch." The Trendelenberg test could cause the patient to lose his or her balance and "lurch" in the direction of the lifted leg or even fall over, but only in cases of severe weakness in the gluteus medius muscle. Such a response would be a positive Trendelenburg sign. The most common positive sign, however, is a downward tilt of the pelvis/hip on the side of the lifted leg. All of the scientific texts, including that offered by Petitioner, identify the tilt as the positive sign which the doctor should be looking for. The tilt is what causes the "lurch" that occurs in more severe cases. If the doctor is looking only for a "lurch," he or she might miss the tilt and thereby miss the most common positive sign of the Trendelenburg test. Because Petitioner stated that he was looking for the patient to fall over or lose his balance, rather than looking for the pelvis/hip tilt, his response to Task 22 was incomplete at best. Therefore, Petitioner is not entitled to any additional points for Task 22. Disruptive Noise During Petitioner's Examination The physical diagnosis part of the May 2001, licensure exam was administered in several conference-type rooms of a hotel. Approximately five or six applicants were administered the exam in the same room as Petitioner. Several of those applicants went before Petitioner and several went after him. While Petitioner was taking the examination, loud noises could be heard. On the video tape of Petitioner's exam, the noises sounded like loud scraping, scratching, and rumbling of metal, as if a large piece of equipment or furniture was being moved in a nearby area of the hotel. At other points, the noises sounded like thumping or banging. In his testimony, Petitioner described the noise as sounding like a mechanical tool or jack-hammer. Dr. Weiss, one of the Department's examiners who graded Petitioner's performance on the physical diagnosis part of the exam, testified that he heard the noise as well and described them as construction noises outside of the room. The noise was not continuous throughout the exam. The noise first could be heard on the video tape near the end of Petitioner's performance of Task 1. It was very loud, but lasted only for several seconds before subsiding. It could also be heard at a very loud level during Tasks 2, 4, 7, and 17, again for only a few seconds each time. The noise could also be heard during Tasks 6, 8, and 16, but at a much lower level. Immediately after the noise first occurred during Task 1, one of the examiners asked Petitioner if the noise was bothering him. Specifically, the examiner asked, "Is that distracting you?" To which Petitioner responded "No, it’s okay." Had Petitioner indicated that the noise bothered him, Dr. Weiss testified that the examination would have been stopped until the source of the noise problem could be addressed. Neither Petitioner nor the examiners mentioned the noise during the remainder of the exam. The video tape does not show any significant difference in Petitioner's demeanor during the tasks where the noise could be heard than the remainder of the tasks. Throughout the test, Petitioner looked somewhat uncomfortable, but not any more so than would be expected under the pressure of this type of exam. At most points where the noise could be heard, Petitioner appeared to be oblivious to it because he was so deep in concentration on the task at hand. Petitioner completed the physical diagnosis exam with more than 17 minutes of the allotted 70 minutes remaining. After he completed his exam, Petitioner filled out a Candidate Concern Form on which he stated that the noises made it hard for him to concentrate. The form was provided to Adrian Washington who was the Department employee in charge of administration of the exam. Mr. Washington informed the two examiners who evaluated Petitioner that a concern had been filed and requested that they independently describe the incident. Dr. Weiss' written comments on the incident referred to the noises as "distracting to me." However, Dr. Weiss' comments, as well as the comments of the other examiner, stated that Petitioner was asked during the examination whether the noises were distracting to him and that he said "no." The comments of the other examiner confirmed what the undersigned witnessed on the video tape, i.e., that "he [Petitioner] did not appear to be visually upset during the examination." The examiners comments also noted that even with the distraction from the noise, Petitioner completed the physical diagnosis part of the exam with time remaining. Based upon the responses of the examiners, primarily the fact that Petitioner stated during the exam that the noises were not bothering him, Mr. Washington determined that no further action was warranted with respect to Petitioner's examination. He did notify the hotel staff about the distractions around the testing area. No other candidate or examiner expressed any concern to Mr. Washington regarding noise problems during the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order which denies Petitioner's application for a chiropractic license based upon the failing score that he received on the physical diagnosis part of the May 2001 licensure exam. DONE AND ENTERED this 15th day of March, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 15th day of March, 2002.
The Issue Whether the Petitioner's application to offer a health flex plan pursuant to Section 408.909, Florida Statutes, should be granted or denied.
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: The OIR and the Agency for Health Care Administration each must "approve or disapprove health flex plans that provide health care coverage for eligible participants." § 408.909(3), Fla. Stat. The purpose of health flex plans is to provide basic and preventive health care services "to low-income uninsured state residents." § 408.909(1), Fla. Stat.7 On November 12, 2004, Comprehensive Medical Access submitted an application to the OIR for approval to participate in the health flex plan pilot program created by the Legislature in Section 408.909, Florida Statutes. Comprehensive Medical Access was formed in 2003 for the purpose of applying for approval to offer a health flex plan. Jack J. Michel, M.D., wholly owns Comprehensive Medical Access, and is its president and chief executive officer. Dr. Michel specializes in the practice of internal medicine, and has been licensed to practice medicine in Florida since 1993. Dr. Michel owns ten healthcare-related companies. In 1998, Dr. Michel purchased Larkin Community Hospital, which is located in South Miami, Florida, and he is the chief executive officer of the hospital in charge of running the hospital. Larkin Community Hospital is a general acute-care hospital that provides surgery facilities and an emergency room. The hospital specializes in providing care to elderly patients, and has an annual operating budget of $30 to $40 million a year, with a monthly payroll of $1.4 million. Larkin is currently approved as a Medicare and Medicaid provider, and it also provides services under contract for federal and state prisoners. In addition, Larkin Hospital and Dr. Michel have been licensed by Florida and the federal government to provide home health services under Medicaid and Medicare. Comprehensive Medical Access, under the management of Dr. Michel, also operates several clinics to serve low-income, elderly, and indigent patients.8 These clinics are designated by the Agency for Health Care Administration as "area of critical need" facilities. This designation allows Comprehensive Medical Access to employ physicians licensed to practice medicine in states other than Florida, including Puerto Rico, who have been issued limited licenses by the Florida Board of Medicine. Comprehensive Medical Access pays these physicians less than it pays those licensed to practice medicine in Florida, and it can, therefore, serve more low-income, elderly, and indigent patients. Currently, Comprehensive Medical Access clinics serve more than 50,000 low-income, elderly, and indigent patients. Many of these patients would be eligible to participate in Comprehensive Medical Access's health flex plan, were its application to be approved. Under Comprehensive Medical Access's business plan for operation as an entity offering a health flex plan, the various clinics it currently operates would provide general health care services for those enrolled in Comprehensive Medical Access's health flex plan, and Larkin Community Hospital would provide hospital services. Under the plan, these services would be provided to individuals participating in the health flex plan, who would pay a monthly fee to Comprehensive Medical Access and co-payments for some services when the services are provided. In its application for approval to offer a health flex plan, Comprehensive Medical Access disclosed that Dr. Michel and his brother, George J. Michel, M.D., who is Comprehensive Medical Access's vice-president and medical director, had been named as defendants in a civil lawsuit filed by the United States of America in the United States District Court for the Southern District of Florida. Numerous defendants were named in the lawsuit, including Larkin Community Hospital and other entities in which Dr. Michel had ownership interests. The 58-page complaint filed in the federal government's civil lawsuit included eight counts relating to two alleged schemes: The first scheme allegedly occurred in 1997 and allegedly involved kickbacks paid by Larkin Community Hospital and related corporations to Dr. Michel, Dr. Michel's practice group, and Dr. George Michel in return for admitting patients to that hospital; many of the patients were allegedly covered by Medicare and many of the admissions were allegedly medically unnecessary. The second scheme allegedly occurred in 1998-1999, after Dr. Michel purchased Larkin Community Hospital, and allegedly involved the fraudulent increase of Medicaid and Medicare revenues by "churning" patients into that hospital from skilled nursing and assisted living facilities, some of which were owned by Dr. Michel, among others; many of the patients allegedly received medically unnecessary treatments while in Larkin Community Hospital. Four counts of the civil complaint charged Dr. Michel and others with violations of the federal False Claims Act, Title 31, Section 3729(1)(1), United States Code, with respect to both the alleged 1997 scheme and the alleged 1998-1999 scheme; one count charged Dr. Michel and others with common law fraud with respect to both alleged schemes; one count charged entities owned by Dr. Michel and others with payment by mistake; one count charged Dr. Michel and others with unjust enrichment; and one count claimed that the government was entitled to "disgorgement of illegally earned monies." The Florida Board of Medicine initiated disciplinary proceedings against Dr. Michel on the basis of the allegations in the civil complaint but dismissed the proceeding before hearing. After the civil complaint was filed, the Agency for Health Care Administration ("AHCA") notified Larkin Hospital that it was suspending Medicaid payments as a result of the allegations in the civil complaint. Comprehensive Medical Access filed a lawsuit in circuit court seeking to enjoin AHCA from suspending Medicaid payments, and a temporary injunction was granted. Dr. Michel testified during the evidentiary hearing conducted by the OIR on June 9, 20059: The allegations in the federal civil complaint arose from testimony given by an associate of the doctor from whom Dr. Michel purchased Larkin Hospital who had been convicted of participation in a kickback scheme in Illinois and who had received a sentence reduction for his testimony regarding Larkin Hospital; The allegations regarding kickbacks were based on misunderstandings about the actual expenses incurred by his practice group relating to the provision of emergency room services at Larkin Hospital under a contract that was never executed, about the reasons for the large number of patient referrals to Larkin Hospital by Dr. Michel and members of his practice group, and about the expenses incurred under the contract between Larkin Hospital and Dr. Michel's practice group for the provision of radiology services to the hospital; The allegations in the civil complaint that Dr. Michel and entities he owned, operated, or controlled billed Medicaid and Medicare for services that were not medically unnecessary were based on audits that disallowed payment for excessive days of hospitalization, but, as a result of appeals, the total number of days disallowed was substantially decreased; and Dr. Michel also testified in June 2005, that the parties in the civil lawsuit had reached a settlement in principal that he expected to be finalized within 60 days, with Larkin Hospital paying $10 million of the total proposed $15 million settlement amount. Dr. Michel categorized the decision to settle the case as a business decision on the part of all parties because it would be difficult to prove or disprove the allegations in the complaint. A settlement had not, however, been finalized at the time of the final administrative hearing in this case. Ultimate finding of fact The filing and pendency in federal court of the civil complaint containing allegations of wrongdoing, including payment of kickbacks and fraud, on the part of Dr. Michel and healthcare-related entities he owned or operated or with which he was associated, are sufficient to raise the issue of Dr. Michel's fitness and trustworthiness as the owner and chief executive officer of Comprehensive Medical Access to operate Comprehensive Medical Access as an entity offering a health flex plan. Dr. Michel did not present any evidence during the hearing relating to the substance of the allegations contained in the civil complaint, but he did establish by credible and persuasive evidence that he is competent to own and operate an entity providing a health flex plan due to his experience in managing entities providing healthcare services, including clinics which primarily service low-income, elderly, and destitute patients; his knowledge about the healthcare services needed by these groups of individuals; and his familiarity with the health flex plan program enacted by the legislature in Section 408.909, Florida Statutes, and how such a plan could be put into operation. In addition, Dr. Michel appears to have in place the facilities and personnel to provide healthcare services under a health flex plan. Nonetheless, the evidence presented by Dr. Michel is not sufficient to overcome the serious concerns regarding Dr. Michel's trustworthiness and fitness to own and operate Comprehensive Medical Access as an entity offering a health flex plan arising as a result of the pendency of the civil complaint filed by the federal government. The explanations provided by Dr. Michel during the investigatory hearing before the OIR are insufficiently persuasive to overcome these reasonable concerns, as is the fact that the settlement pending in June 2005 has yet to be finalized. Comprehensive Medical Access has, therefore, failed to establish with the requisite degree of certainty that Dr. Michel is trustworthy and has not engaged in business operations in bad faith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Insurance Regulation enter a final order denying the application of Comprehensive Medical Access, Inc., to offer a health flex plan. DONE AND ENTERED this 1st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 1st day of November, 2006.
The Issue The issues in this case are whether Respondent committed sexual misconduct as charged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this case, Respondent was a licensed chiropractor in Florida, having been issued license number CH 9186 on June 1, 2006. At all material times, Respondent worked at and owned Florida Wellness and Rehabilitation Center (Florida Wellness), located at 101 North Franklin Street, Suite A, Tampa, Florida. He has been the sole or predominant owner of Florida Wellness since he started the business in 2006. Approximately ten years ago, Stephen Unger acquired a 13-percent ownership interest. Approximately eight years ago, Holly Ridge acquired an eight- percent ownership interest. Respondent retains a 79-percent ownership interest. Respondent’s business has expanded over the years. Florida Wellness now has five locations. In addition, over the last few years Respondent and his business partners established other health care businesses, including a pharmacy in 2017 and a surgical center in 2018. The ownership shares of these other businesses are the same as for Florida Wellness. Respondent now spends two days per week seeing patients at the Franklin Street location, and three days per week engaged in administrative matters to manage the businesses. Respondent’s license has not been the subject of prior discipline. In 2015, the Franklin Street location of Florida Wellness provided chiropractic care, acupuncture, family medicine by a family medicine physician, massage therapy by licensed massage therapists, and physical therapy ancillary to chiropractic care, provided by registered chiropractic assistants. Respondent described his practice as general chiropractic medicine, with an emphasis on treating automobile accident victims. At issue in the Amended Administrative Complaint is an incident involving Respondent and a patient, J.S., during a visit for chiropractic services on March 5, 2015. J.S. had been going to Florida Wellness for chiropractic treatment beginning November 10, 2014, following an automobile accident on or about November 1, 2014, that left him with neck, shoulder, and upper back pain. He and his then-partner, M.S., were in the accident together, and they were referred to Florida Wellness by Morgan & Morgan, the law firm representing them with regard to the automobile accident. J.S. had an appointment to see Dr. Leonard at 4:00 p.m. on March 5, 2015. His then-partner, M.S., drove him to Florida Wellness and went in with him to try to secure an impromptu adjustment. J.S. was met right away by Respondent, who took him back to a private treatment room. M.S., still waiting in the waiting area, saw Respondent escort J.S. back to a treatment room and close the door. M.S. said the door stayed closed; he did not see Respondent come back out. Shortly thereafter, M.S. was taken back for an adjustment by another chiropractor. Once inside the treatment room, J.S. fully disrobed in preparation for treatment, facing towards a dresser against a wall. Respondent stayed in the treatment room while J.S. disrobed.3/ As Respondent admits, it is inappropriate for a chiropractor to remain in the treatment room while a patient disrobes. J.S. testified that he had completely disrobed other times when treated by Respondent, based on Respondent’s advice, for ease of access to the targeted muscles. Respondent said that he had no recollection of what he said to J.S. on this subject, but, nonetheless, denied that he advised J.S. to disrobe. He testified that he has a “canned” speech that he gives to patients after he brings patients to a treatment room for manual therapy, telling them to undress to the extent they are comfortable doing so, and then to get on the treatment bed in between the bottom sheet and top sheet, covering themselves with the top sheet. Inconsistently, Respondent informed the Tampa police, in an interview shortly after the incident on March 5, 2015, that whether he has his patients completely disrobe depends on what treatment he is providing. Respondent explained that he had J.S. completely disrobe because J.S. needed treatment in his hip and groin area. J.S.’s clear memory of Respondent advising him to disrobe to assist in the treatment, consistent with Respondent’s explanation to the police an hour after the incident, is more credible than Respondent’s professed uncertain recall of what he told J.S. regarding disrobing. J.S.’s testimony is credited. Fully disrobed, in Respondent’s presence, J.S. turned away from the wall and got on the treatment bed, face down, for Respondent to begin treatment. J.S. was initially covered with a sheet, but Respondent pushed the sheet aside to begin manual therapy treatment to J.S.’s lower back, hips, buttocks, and the backs of his thighs (hamstrings). Manual therapy includes myofascial release, trigger point therapy, and passive stretching. J.S. described the manual therapy to his lower back, hips, buttocks, and thighs as “massage.” Respondent said that the manual therapy he provides is different from massage, which he described as for relaxation. Respondent also said that he does not think massage is a covered service, presumably referring to third-party payor coverage. J.S. testified that while he was going to Florida Wellness, he had not complained of pain in his lower region or hip area. His initial complaint was pain in the upper back, shoulder, and neck, and he did not subsequently report other areas of pain that developed. However, early on in his treatment, Respondent diagnosed him with hip rotation, which was explained to J.S. as one of his legs being shorter than the other. According to J.S., the manual therapy treatment to his lower back, hips, buttocks, and thighs was explained as necessary to loosen tight muscles to help with the hip rotation. J.S. understood that, despite the fact that he did not subjectively complain of pain, this diagnosis followed from the objective findings and assessment to identify problems in addition to the pain he reported. While J.S. was still face down on the treatment table, Respondent performed passive stretching to stretch the front of his thigh. This stretch entailed bringing the foot towards the buttocks while lifting the bent leg up by the knee. There is no legitimate reason for having a patient be fully disrobed to receive the manual therapy that Respondent administered to J.S., particularly not for this form of passive stretching. Instead, the leg being stretched would have to be uncovered, and even with careful draping and tucking (which did not occur in this instance), the sheet would necessarily be moved, with any tucking likely dislodged by the stretching movement. The risk would be high that the patient’s privacy-- particularly a patient with male genitalia--would be breached and the patient’s private parts unnecessarily exposed. In this instance, J.S. was fully and unnecessarily exposed, because Respondent had pushed the draping sheet off of J.S. Given this risk with no commensurate legitimate reason for having a patient completely disrobed (whether under a sheet or not), professionalism dictates that a chiropractor would instruct a patient receiving this form of passive stretching to remain clothed or wear underwear, or the chiropractor would supply the patient with a treatment gown or gym shorts to change into. As Petitioner’s expert reasonably opined, this should be the practice even if a patient would be comfortable disrobing. It is up to the chiropractic physician to set the professional parameters for the treatment being provided, for the protection of everyone involved, including the chiropractor. As Dr. Mathis put it: “[A] physician’s access to a patient’s body is a time- honored privilege and it’s very, it’s of the utmost importance that we maintain their modesty and respect their privacy. And also that demonstrates our professionalism and our respect for them as a patient.” (Tr. 74-75).4/ After the passive stretching while J.S. was face down, Respondent instructed J.S. to turn over. J.S. did so. He remained fully unclothed and uncovered by a draping sheet. Respondent performed more passive stretching and then proceeded to administer manual therapy/massage to J.S.’s left adductor muscles, which run along the inside of the thigh from the knee to the pubic bone. The daily medical encounter record for March 5, 2015, does not document the subjective complaint or objective findings prompting this deep tissue/muscle work. J.S. confirmed in his testimony that he did not complain of hip pain, thigh pain, or groin pain. His understanding from Respondent was that the adductor work was a continuation of the loosening of muscles to address his hip rotation.5/ Respondent worked on the inside of J.S.’s left thigh from knee to groin. As he approached J.S.’s groin, he grazed J.S.’s scrotum and penis with the back of his hand. Respondent did not say anything and J.S. did not say anything. J.S. testified that he thought it was incidental contact and did not think anything of it. Respondent continued working on the inside of J.S.’s thigh. While Respondent was massaging the inner thigh, the back of his hand brushed the side of J.S.’s genital region once or twice more. J.S. did not think anything of this contact either, assumed it was accidental, and nothing was said about it. As a result of the grazing, J.S.’s penis became partially erect. Respondent finished working on J.S.’s left thigh, and walked around to the right side of the table to work on the right thigh. Respondent then gripped J.S.’s penis with his full hand, palm and fingers wrapped around, and he began stroking J.S.’s penis. Respondent stroked J.S.’s penis several times. J.S. testified that he was frozen in shock and did not say or do anything. He believes the stroking continued for approximately one minute,6/ but admitted that his estimate of the duration may not have been an accurate perception under the circumstances. J.S.’s testimony describing Respondent having wrapped his fingers around J.S.’s penis and stroked it several times was clear, consistent, and credible, and is credited. After Respondent released J.S.’s penis, Respondent apologized, saying: “Sorry, you got the best of me.”7/ He then instructed J.S. to turn back over, face down again, and he proceeded to treat J.S.’s upper back, neck, and shoulder area, providing quick applications of pressure. J.S. described this treatment as adjustment-like, not exactly the popping and cracking of joints that one might associate with chiropractic adjustments, but quick pressure to help with alignment. The upper back-neck-shoulder treatment continued for a few minutes. When Respondent finished the adjustments, he touched J.S. on his shoulder and said, “Our secret?” J.S. responded, “Sure.” J.S. explained that he just wanted to keep a low profile and be compliant, so that he could get dressed and leave the room as quickly as he could without causing a stir (as might result if a naked young man ran out of a treatment room). J.S. got dressed and left the room to go to the open physical therapy (PT) area, where he was scheduled for weighted neck treatment. He did not interact with anyone. Instead, he went directly to the weighted neck treatment chair on the far side of the open PT room facing a wall and sat down. The back of J.S.’s chair and the back of his head faced the open PT area, so he was not positioned to see or make eye contact with anyone else in the room. J.S. was in the treatment chair and had already begun weighted neck therapy when M.S. finished with his adjustment and went to the PT area to find J.S.8/ When M.S. entered the room, he saw that Respondent was there, too, standing at a computer station, four or five feet behind the back of J.S.’s treatment chair. M.S. walked over to J.S.’s treatment chair, and he could see that J.S. was upset. J.S. reached for M.S.’s hand, which M.S. said that J.S. hardly ever did, as they tried not to engage in public displays of their affection. M.S. stood next to J.S. for a while and then went to sit on a therapy ball in the middle of the room to wait for J.S. to finish. Based on the substantially more credible evidence, J.S. was visibly upset and uncomfortable while in the open PT area. His demeanor upon completing the neck PT therapy was captured on an office surveillance video showing part of the open PT room, and it confirms M.S.’s description of J.S. as upset. The recording (video only) for March 5, 2015, has a time counter that begins at 4:31:53 p.m. and stops at 4:33:29 p.m. J.S. was initially blocked from view, but became visible when he rose from the weighted neck treatment chair, turned, and traversed the room. Respondent and J.S.’s partner, M.S., were also in view in the video. Respondent testified that J.S. did not appear to him to be upset or uncomfortable when he was in the open PT room, but the office surveillance video discredits his testimony. Indeed, the video shows that not only did J.S. appear upset and uncomfortable, but also, Respondent himself was noticeably uncomfortable. Respondent did not say how long he was in the open PT area while J.S. sat in the treatment chair with his back to the room, but Respondent did not contradict M.S.’s testimony that Respondent was standing at the computer station four feet behind the back of J.S.’s chair when M.S. entered the room. That is where Respondent was at the beginning of the video. Respondent had no view of J.S. from that position, except possibly the top and back of J.S.’s head and shoulders. Respondent had a brief opportunity to see J.S.’s expression and demeanor when J.S. rose after his treatment to cross the room to M.S. The video shows this: J.S.’s eyes were downcast. He was not smiling. He did not appear happy or relaxed. Instead, he appeared uncomfortable and upset. Before J.S. walked past Respondent, J.S. reached up to his chest at the V-neck of his shirt, and then started rubbing the side and back of his neck, either in pain following the neck therapy or in discomfort. J.S. did not raise his eyes to look over to Respondent as he walked past the far side of the standing desk where Respondent stood behind a computer monitor. Respondent appeared to say something as J.S. walked by, but J.S. did not look at Respondent even when he said something. J.S. testified that he believes Respondent told him what room to go to for electrical stimulation (e-stim) treatment, but that J.S. did not look at Respondent because of J.S.’s discomfort. J.S.’s eyes remained downcast and he kept rubbing his neck. When J.S. got to M.S.’s side, Respondent said something in their direction. He stepped out from behind the standing desk and took a few steps toward J.S. and M.S. J.S., still holding his neck, only looked at M.S., who gestured in a direction out of camera range. J.S. walked off in that direction, still holding his neck, and M.S. stood up and turned to follow J.S. As J.S. started to walk away in the direction that M.S. had gestured, Respondent stepped back, awkwardly touching his right hand near the front of his pants at the hip, then back toward the right buttock, and then he wiped his right hand on his right buttock in an awkward gesture of discomfort. (Jt. Ex. 2 at 4:33:22-4:33:24). Respondent then walked back behind the standing desk, reached both arms out over the computer keyboard as if he was going to type something, then immediately jerked his arms and hands back in another awkward display, as if he did not know what to do with his hands. (Jt. Ex. 2 at 4:33:26). He again stepped out from behind the standing desk, walked a few steps back towards M.S., and said something. As he did, Respondent began rubbing his left wrist and hand with his right hand, continuing the uncomfortable, awkward gestures. (Jt. Ex. 2 at 4:33:27- 4:33:28). The office surveillance video stopped the next second, at 4:33:29 p.m. J.S. and M.S. both testified that J.S. was scheduled to receive e-stim treatment after the neck therapy. J.S.’s care plan called for e-stim, and he said that it was part of the regular treatment he received, in addition to adjustments, massage (manual therapy), and weighted neck physical therapy. E-stim treatment is administered by one of the chiropractic assistants in one of the private treatment rooms. Rather than stay for e-stim treatment, J.S. left with M.S. after letting someone know that he did not want to stay for the additional treatment.9/ After walking out of the office, J.S. broke down crying. J.S. and M.S. went to their car in the parking garage, and J.S. told M.S. what happened. M.S. called the police, and two officers arrived 15 minutes later. Apparently Officer Graham, a white male, spoke with J.S. first, and then both Officer Graham and Corporal Penix, a dark-skinned female (see P. Ex. 6 at 1:54), interrogated J.S. while recording the encounter with an audio and video recorder. A DVD of the encounter is in evidence. The video shows that J.S. was treated with a degree of harshness, as if he was an accused rather than a complainant. For example, at the beginning of the recording, Corporal Penix stated that Officer Graham was going to “read you your . . . ,” and then corrected herself to say that Officer Graham was not going to read him his rights, but was going to swear in J.S., so that his interview was under oath. (P. Ex. 5 at 0:37-0:41). J.S. was questioned by the police while he sat in the passenger seat of the car in the parking garage. M.S. was waved away by Corporal Penix as the officers approached the car, so M.S. stood nearby, out of the way. The audio part of the interview was not very good, with a lot of background noise (from the parking garage, among other things), but J.S.’s statements were consistent with his subsequent written statement and his video deposition, in all material respects. J.S. appeared upset and uncomfortable in expression, demeanor, and body language. He rubbed at the side of his neck throughout much of the questioning. Officer Graham asked J.S. if he was hard when Respondent was stroking his penis, and J.S. said yes. Officer Graham then asked if J.S. ejaculated. J.S. said no. The two police officers then went to the Florida Wellness office. Corporal Penix operated the video recorder, and began recording (video only) as the officers approached the glass front office, before opening the glass door. Respondent was visible through the glass, as he was in the lobby before the police entered the office. When the officers entered the lobby, Respondent reached out to shake hands with each of them, and ushered them back to a private treatment room.10/ Once secured in the private treatment room, Corporal Penix added the audio portion to the recording, and the interview began. Respondent was not read his rights or sworn in. He was asked what happened with J.S. He stated that J.S. had issues in a sensitive area, and Respondent was treating that area. He then said that there was a graze of his hand on J.S.’s genitals, “which elicited a sexual response.” Making a face, Respondent added, “and it stayed that way.” (P. Ex. 6 at 1:16-1:17). Respondent then said that it got a little awkward, so he told J.S. that if he is uncomfortable, Respondent could stop treatment, but J.S. said no, everything is fine. So Respondent said he proceeded for another eight minutes or so. Respondent then said that because it was “really awkward” in that eight minutes, Respondent stopped and left the room. He said he immediately informed his colleague about what happened and documented it as “part of the medical encounter.” (P. Ex. 6 at around 1:35). Respondent initially took the officers to a treatment room that did not resemble the room described by J.S. in his testimony. This room had a segmented adjusting table, not covered by a sheet, along with two chairs, a desk with a computer station, shelves, and several pieces of equipment. After Respondent completed his description of what happened, Corporal Penix asked if they were in the room where J.S. was treated, and Respondent said no. He escorted them to a smaller, low-lit room that matched J.S.’s description. The room was dominated by a massage-type table/bed with a pillowed face rest, diagonally centered so that there would be space to walk around it. Other than the treatment bed, there was not much in the room: a small dresser against the wall to the right of the door, a shelf against the wall to the left of the door, a small hamper next to the shelf, and two small wastebaskets on either side of the bed. No chair, stool, or equipment was visible in the room. The interview continued in the room where it happened. Officer Graham asked whether, when Respondent said he was working on a sensitive area, he was talking about the penis. Respondent quickly said no, then with hands gesturing, said (or stuttered), “Hip. Hip-hip, hip-hip.” (P. Ex. 6 at 2:24-2:25). Corporal Penix asked Respondent whether J.S. had his clothing on, and Respondent said J.S. had taken his clothes off. Corporal Penix then asked whether J.S. kept his underwear on, and Respondent said no. When asked if he typically had his patients completely undress, Respondent said that it depends on what kind of treatment they need, and that for J.S., he was an ex-dancer, and “did a lot of splits and things in his groin area.” (P. Ex. 6 at 2:87). Officer Graham summarized what he had written down in his notes, including that Respondent said he grazed the genitals with his elbow or arm. Respondent corrected him, saying that he grazed the penis with his hand and forearm, pointing to the outside of his left hand, followed by a sweeping gesture up his forearm to just below the elbow. (P. Ex. 6 at 3:20-3:22). Officer Graham continued with his summary, stating that Respondent’s grazing action caused J.S.’s penis to be erect. Respondent appeared to hesitate before confirming that statement, so Officer Graham added, “Or was it already erect?” Respondent first said that it seemed a little, maybe, but then said that he was not really focusing on it. (P. Ex. 6 at 3:27-3:32). Corporal Penix then asked Respondent to show the positioning and movement: where J.S. was on the bed and how Respondent was moving with his arm to show how it grazed. (P. Ex. 6 at 3:50-3:59). Respondent said that J.S. lay on his back, with his head at the top of the bed (where the pillowed face rest is). Respondent then showed his positioning: he stood on the side of the bed where J.S.’s left side was, facing the top of the bed where J.S.’s face would have been. Respondent said he was working on J.S.’s adductors, gesturing to the imaginary thigh closest to where Respondent stood. Respondent demonstrated the movement of his left hand and forearm while working on J.S.’s adductors. From Respondent’s positioning, showing the pressure he was applying to an imaginary inside thigh on the half of the bed closest to where Respondent stood, Respondent demonstrated that he was working on J.S.’s left adductors. Respondent then made a sliding gesture forward (towards J.S.’s face) and across (from J.S.’s left inner thigh to J.S.’s left hip), demonstrating how Respondent’s left hand and forearm slid across J.S.’s groin area. (P. Ex. 6 at 4:00-4:11). At the hearing, Respondent testified to an entirely different scenario resulting in the grazing. Respondent did not say that he was standing next to J.S.’s left side, facing in the direction of J.S.’s face, with Respondent’s hand and arm movement going forward, sliding across J.S.’s genitalia. Instead, at the hearing Respondent said that he was sitting in a chair (also described as a stool) on the right side of the table, in line with J.S.’s knees, reaching across his right knee to work on the left adductors from knee to groin. Respondent said that J.S. was draped with a sheet across his genitals, and that as Respondent approached the groin area, Respondent made contact with something, looked up, and saw that what he made contact with was J.S.’s penis, which was fully exposed. Respondent said that he did not notice that J.S.’s penis had become uncovered by the sheet, because Respondent was looking at J.S.’s left knee. He said that he made contact with the medial aspect of his left hand and his wrist, though he said it was more wrist than hand. Several weeks earlier in deposition, Respondent testified that he could not remember which side of the treatment bed he was on or which leg he was working on when the grazing occurred. He also said that he grazed J.S.’s genitals with the medial aspect of his hand and “potentially the wrist.” (P. Ex. 13 at 65). Respondent admitted that when his hand/wrist touched Respondent’s penis, it was skin-on-skin contact. But Respondent claimed that J.S. was draped with a sheet the entire time, except for when J.S.’s penis became exposed. Respondent said that his position, sitting on J.S.’s right side at knee level, with his focus towards J.S.’s left knee, kept him from noticing the sheet had slipped, exposing J.S.’s penis, until contact was made. It is, perhaps, conceivable that someone seated in a chair or stool on the right side of a massage table, staring only at the left knee of a person laying face up on the table, might not be able to see an exposed penis, if the person on the table were to suddenly be exposed. However, it is not conceivable that Respondent, from that position, could reach up and over the right leg of his patient to apply compression pressure effectively with the hard part of the palm to the inner thigh of the patient’s left leg. It is even more inconceivable that Respondent would remain focused on the patient’s left knee while Respondent applied that compression pressure all the way down the inner thigh from the knee to the groin. That is a contortion that defies logic. Respondent’s testimony at hearing was not as credible as his demonstration to the police an hour or so after the incident. The changes in the description appear calculated to support his claims that J.S. had been draped with a sheet until it somehow moved, and that Respondent would not have noticed J.S.’s exposed penis until after he touched it. Respondent’s demonstration of his own positioning and movements shortly after the incident leaves no doubt that, had J.S. been draped and had the drape accidentally slipped before contact, Respondent surely would have seen it and professionally would have been obliged to correct the draping. The police officers asked Respondent if they could speak with the colleague to whom he reported the incident, and he agreed to let them talk to Holly Ridge, D.C. Dr. Ridge reported that Respondent took her into the treatment room where the incident happened, immediately after it happened. She said that Respondent told her that during an acupuncture session with J.S., while working on J.S.’s adductors near his groin, there was an accidental grazing of Respondent’s hand on J.S.’s penis, which resulted in sexual arousal--an erection. Respondent told her that he asked J.S. if he was uncomfortable, and that he could stop treatment, but J.S. said he was fine. Dr. Ridge added that she and Respondent discussed documenting the incident, and Respondent wanted her opinion about where to record it. They agreed it should go in the “patient notes” section of the patient chart, and Respondent did that. In the Florida Wellness EMR system, the “patient notes” section is not part of the patient’s medical records. It was described as for internal communications, such as whether a patient prefers to go by her middle name instead of first name. It was Respondent’s intention to create the note as “evidence,” but to exclude it from the daily medical encounter report. Therefore, Respondent’s note of the incident is not found in J.S.’s daily medical encounter record for March 5, 2015. In fact, the “note” is not in evidence, because Respondent only offered a screenshot of a computer image as opposed to an actual printout, and the screenshot provided at hearing was not legible. Nonetheless, Dr. Ridge was permitted to testify to the note’s contents, and Respondent was permitted to testify that the time stamp on the screenshot was 4:48 p.m., on March 5, 2015. Respondent said that he did not want to include his note regarding the incident in the actual medical encounter record, out of fear that it would create problems for J.S.’s lawsuit regarding the automobile accident, an explanation that makes no sense. Respondent told the police that he documented the incident as part of the medical encounter, earning him a comment from Corporal Penix that Respondent did the right thing. Respondent and Dr. Ridge both told the police that Respondent reported the incident to Dr. Ridge immediately after it occurred. Respondent testified in his deposition that he reported the incident to Dr. Ridge immediately or within a few minutes afterward; his memory was that it was the first thing he did after finishing J.S.’s treatment. But that is not what happened. Once again, there is a timeline problem. After the incident, and after J.S. got dressed and went to the PT area for his weighted neck therapy, Respondent also went to the PT area. It was not until after Respondent saw that J.S. was upset when J.S. finished his neck treatment--and Respondent showed some discomfort himself--that Respondent sought out Dr. Ridge and the internal note was created, approximately 15 minutes after the end of the office surveillance video. Respondent apparently realized the timeline problem before the hearing, because his testimony was revised to say that he talked to Dr. Ridge after he was in the PT area (without offering an explanation for the inconsistencies). The record is replete with other inconsistencies, large and small, in Respondent’s explanation of the incident itself.11/ Touching on just a few, Respondent testified in deposition and at hearing that the incident was not awkward, nor was the completion of treatment to J.S. after the incident. In contrast, Respondent told the police that the incident was awkward, and that it got “really awkward” in the eight minutes during which Respondent said he continued treatment. Respondent testified that he did not notice J.S.’s penis before contact was made, and after contact he immediately covered J.S.’s genitalia and did not notice the condition of J.S.’s penis thereafter. But Respondent told the police that J.S.’s penis “seemed a little, maybe” erect before the grazing, that the grazing elicited a sexual response, and (making a face) that it stayed that way. Respondent’s final step, taken the following morning, was to speak with J.S.’s attorney at Morgan & Morgan, and accede to the attorney’s request for Respondent to determine that J.S. had achieved maximum medical improvement, a legal term of relevance to the attorney in the lawsuit against the person who hit M.S. and J.S.’s automobile. From November 10, 2014, through March 5, 2015, each of J.S.’s daily medical encounter records had the same care plan: Based on the patients [sic] presentation, and current prognosis, it is my opinion the patient should be treated with manipulative and physiological therapeutics three times a week for four to six weeks. These therapies will consist of therapeutic exercises, stretching, mobilization/manipulation of involved joints, trigger point treatment and electric muscle stimulation. (Jt. Ex. 1 at Bates 9). The plan changed overnight, without any re-evaluation of J.S. At 9:55 a.m. on March 6, 2015, Respondent electronically signed, after reviewing and revising, an “update” to J.S.’s care plan. In the update, Respondent concluded as follows: “I believe that [J.S.] has reached a point of Maximum Medical Improvement from our conservative care. He is released from my care and should return to a different chiropractic physician if [needed in the future].” (Jt. Ex. 1, Bates p. 74). Although Respondent opined in the medical record (at the attorney’s request) that J.S. “has” reached maximum medical improvement, Respondent testified in deposition and at hearing that it was only a “possibility” that J.S. had “potentially” reached maximum medical improvement. (P. Ex. 13 at 118; Tr. 303). Respondent admitted he discharged J.S. as a patient because J.S. complained to the police about the incident. Respondent said he regrets not documenting in the medical record the real reason he discharged J.S. (but that would have undercut his opinion that J.S. had reached maximum medical improvement). After March 5, 2015, J.S. did not attempt to return for more treatment by Respondent or anyone else at Florida Wellness. J.S. enlisted in the United States Navy. He testified in April 2019 by video deposition in lieu of hearing testimony while on his last vacation before going to Mississippi for four months of training, followed by deployment to Guam. After March 5, 2015, M.S. stopped going to the Franklin Street location of Florida Wellness, which is the only location where Respondent sees patients. M.S. still goes to Florida Wellness, but at a different location with different physicians. J.S. and M.S. are no longer in a relationship. They split up in 2017. No lawsuit was brought against Respondent by J.S. and/or M.S. on account of the incident. Summary with Ultimate Findings of Fact There has never been a dispute that Respondent came into skin-on-skin contact with J.S.’s genitalia. The issue is whether, as J.S. asserted, there was intentional contact. Respondent denied that he grabbed J.S.’s penis and stroked it, but Respondent never landed on a credible explanation of the skin-on-skin contact that he admits did occur. His ever-shifting descriptions of the incident, including where he was (left or right side, sitting or standing), how contact was made with what part of Respondent’s hand and/or wrist and/or forearm, how J.S.’s penis came to be exposed, and how Respondent could not have noticed an exposed partially erect penis before coming into contact with it, undermine the credibility of Respondent’s claim that the contact was accidental. In addition, Respondent admitted, initially, that he remained in the treatment room while J.S. fully disrobed. Respondent’s attempt to later deny that he had done so and offer an incongruous explanation for his prior admission substantially undermined Respondent’s credibility. What is left is the impression that the truth was retracted upon reflection that admitting to inappropriate conduct to start the treatment session casts doubt on Respondent’s explanation of what happened thereafter. The credible, clear, and convincing evidence establishes that Respondent intentionally touched J.S.’s penis, grasping and stroking it, on March 5, 2015. Respondent had no medical reason to touch J.S.’s penis, as the parties stipulated. The parties also stipulated that a chiropractor who has purposely made intentional physical contact to a patient’s penis for non-diagnostic or non-therapeutic purposes has committed sexual misconduct. Having purposely made intentional physical contact to J.S.’s penis for non-diagnostic and non-therapeutic purposes on March 5, 2015, Respondent committed sexual misconduct.
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 Respondent guilty of violating section 460.413(1)(ff), Florida Statutes (2014), through a violation of section 460.412, Florida Statutes (2014), and rule 64B2-17.0021, as charged in the Amended Administrative Complaint; revoking Respondent’s license to practice chiropractic medicine; and imposing costs of the investigation and prosecution of this case. DONE AND ENTERED this 13th day of September, 2019, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2019.
