The Issue Whether Respondent violated Subsections 460.413(1)(ff) and 456.072(1)(u), and Section 460.412, Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Dr. Hether was a licensed chiropractic physician within the State of Florida, having been issued license number CH 2601 on or about April 16, 1977. Other than the instant Administrative Complaint, Dr. Hether has had no disciplinary action taken against his license. In April 2003, Dr. Hether had two chiropractic offices, one in Port Orange, Florida, and one in Deland, Florida. On or about April 8, 2003, C.B., a 29-year-old female, presented herself to Dr. Hether's office in Port Orange, Florida, in order to receive chiropractic treatment for injuries she sustained in an automobile accident. C.B. began receiving treatments in the Port Orange Office, but switched her appointments to the Deland office on or about May 8, 2003. The remainder of her treatments was given at the Deland office. Her treatments included chiropractic adjustments and massages. The chiropractic adjustments were performed by Dr. Hether and other physicians who worked for Dr. Hether; however, the majority of the chiropractic adjustments were performed by Dr. Hether. Until C.B.'s visit on June 11, 2003, all the massages had been performed by licensed massage therapists who worked for Dr. Hether. From on or about April 8, 2003, up to June 11, 2003, C.B. received various chiropractic treatments at Dr. Hether's offices without incident. On June 11, 2003, C.B. presented herself to Dr. Hether's office to receive her usual chiropractic treatment, including a massage. Dr. Hether, his son, and another male were in the office. Dr. Hether offered to perform the massage on C.B. because the regular massage therapist was not present, and C.B. accepted. C.B. went into the massage room, undressed to her underwear, and lay face down on the table with a sheet draped over her. Dr. Hether came into the massage room and began to massage C.B. Dr. Hether and C.B. were the only persons in the room during the massage. While C.B. was lying face down, Dr. Hether slipped his hands under C.B.'s underwear on the left side of her buttocks and then placed his hand under her underwear on the right side of her buttocks. At Dr. Hether's instruction, C.B. turned over onto her back. Dr. Hether placed his hands under C.B.'s breast area and rubbed upward towards her cleavage. Dr. Hether then slid his hand down C.B.'s body toward her vaginal area, grabbed a part of C.B.'s vaginal area, and began to make grunting noises as if he were getting sexual pleasure from the touching. While Dr. Hether was touching C.B.'s vaginal area, Chase Hether, Dr. Hether's son and office manager, knocked on the door to the massage room. Dr. Hether briefly stopped the massage to speak to his son. The door was partially open, but Chase Hether could not see inside the massage room. After speaking to his son, Dr. Hether closed the door and walked back to the massage table, where he again placed his hand in C.B.'s vaginal area and slid his fingers back and forth. Dr. Hether then shoved his hand further down C.B.'s panties and repeatedly thumped C.B.'s vaginal area. While Dr. Hether was thumping her vaginal area with one hand, he grabbed C.B.'s ankle with the other hand, while using the full pressure of his body weight on her body. Dr. Hether resumed making the grunting sounds and continued to make the sounds for a while. C.B. had approximately 27 massages at Dr. Hether's offices from the time she began treatment in April 2003 until June 11, 2003. The massage therapists who gave her those massages did not touch C.B.'s pubic area or touch the areas around C.B. breasts. After the massage, C.B. got dressed and went into another room to receive a chiropractic adjustment from Dr. Hether. Dr. Hether gave the chiropractic adjustment without any further inappropriate touching. After he concluded the chiropractic treatment, he asked C.B. personal questions about her living arrangements and occupation. C.B. went into the reception area of the office to leave the building. She saw Chase Hether and another man in the reception area. C.B. did not tell either man what had happened nor did she tell them that she would not be back to Dr. Hether's office for treatment. While Dr. Hether was touching C.B. inappropriately, she did not cry out, tell him to stop, or attempt to leave. When Chase Hether came to the door of the massage room, C.B. did not tell him what Dr. Hether was doing. C.B. did not try to stop the massage, leave Dr. Hether's offices, or tell others at Dr. Hether's office about the inappropriate touching because she was afraid of Dr. Hether and did not know what else Dr. Hether might do to her. She felt like she was a "visitor in her own body" and had no control over what was being done to her. She did not report the incident to the police department because she felt that the police were ineffective. C.B. did not go back to Dr. Hether's offices for treatment after the incident on June 11, 2003. She sought treatment from another chiropractic physician, Dr. Kimberly Watson, whom C.B. saw on June 23, 2003. C.B. told Dr. Watson what had happened to her at Dr. Hether's office. Dr. Watson advised C.B. that she could file a complaint with the Department of Health. C.B. did send a complaint to the Department of Health in June 2003, but she sent it to the wrong address. She got the correct address from Dr. Watson and filed a complaint with the Department of Health in September 2003. A year passed, and she contacted the Department of Health, wanting to know the status of her complaint. C.B. was told to file another complaint, which she did. Dr. Hether's wife, Kathe Hether, testified that she was at Dr. Hether's office the day of the incident and that as C.B. was leaving the office she spoke to C.B. for several minutes concerning her publishing business and that C.B. told her that she was going to another chiropractor that was nearer to her home. Mrs. Hether's testimony is not credible. Her husband of 36 years did not advise her until two months before the final hearing, that an administrative complaint had been filed against him. It is inconceivable that two and one-half years after their conversation, Ms. Hether vividly remembers talking to C.B. when there had been no reason to remember the conversation. Additionally, Ms. Hether's explanation for C.B.'s failure to return to Dr. Hether for treatment because C.B. wanted to go to a chiropractor closer to her home is also not credible. C.B. chose to seek treatment from Dr. Watson, whose office was about the same distance from C.B.'s home as Dr. Hether's office. C.B. also told Dr. Watson about the incident with Dr. Hether, explaining the reason that she discontinued treatment with Dr. Hether. C.B. has not brought a civil action against Dr. Hether for the incident on June 11, 2003. She filed the complaint with the Department so that Dr. Hether would not touch other patients inappropriately.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that James Hether, D.C., violated Subsection 460.413(1)(ff), Florida Statutes, by violating Subsection 456.072(1)(u) and Section 460.412, Florida Statutes; issuing a reprimand; imposing a $2,500 administrative fine; requiring a psychological evaluation by the professional resource network; and placing him on probation for two years, the terms of which would include a practice restriction prohibiting him from treating female patients without another certified health care professional in the room. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of July, 2006.
The Issue The issue is whether Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.
Findings Of Fact Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows: Grader 27--Cervical (3), thoracic (3), occipital (3), pelvic (2), rib (3), and soft tissue (3.5). Grader 37--Cervical (3), thoracic (3), occipital (3), pelvic (3), rib (3), and soft tissue (3). Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance: Cervical (3), thoracic (2.5), occipital (3), pelvic (2), rib (3), and soft tissue (2.5). Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Chiropractic Examiners, enter a Final Order denying the request for relief filed by Jens Emilio Valle and dismissing the petition for relief. DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Examiners 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7). COPIES FURNISHED: E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067 Patricia Guilford Executive Director Board of Chiropractic Examiners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent is guilty of making or filing a false report signed in the capacity of a licensed chiropractic physician, in violation of Section 460.413(1)(j), Florida Statutes, and, if so, the penalty.
Findings Of Fact Respondent has been a licensed chiropractor in Florida since 1978, holding license number CH0002696. Petitioner requires licensed chiropractors to file Mandatory Practitioner Profile Questionnaire Packets (Profiles). The subject Profile was due on or before April 15, 1999. The Profile asks the licensee to supply various items of information and answer several questions. Section II of the Profile requires information concerning "medical education." In response to the question of what medical school Respondent attended, he wrote: "Logan 'Quack Con-Artist' School of Chiropractic." In response to the type of his degree, Respondent wrote: "Quack Con-Artist Chiropractic Degree." In response to questions concerning medical training, Respondent answered: "'Fraudulent' Automobile Personal Injury Cases (Robbing Insurance Companies)" and "'Fraudulent' Workers Compensation Cases (Robbing Insurance Companies)." Respondent also added to these responses, as well as the responses cited in the preceding paragraph, the following: "Caveat: see letter dated April 7, 1999 sent to Gloria Henderson, Division Director)." Section VIII of the Profile requires information concerning criminal offenses. This section asks: "have you ever been convicted or found guilty, regardless of whether adjudication of guilt was withheld, or pled guilty or nolo contendere to a criminal misdemeanor or felony in any jurisdiction?" The question then states: "If "YES," briefly describe the offense(s), indicate whether the conviction is under appeal, and attach copy of notice of appeal." The form supplies three lines for each of these items of information. Respondent answered "no" to the first question in Section VIII and left the remainder of the section blank. The Profile concludes, immediately above the signature line: "I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 455.624, 458.327, 458.331, 459.013, 459.015, 460.413, 461.013, 775.082, 775.083 and 775.084, Florida Statutes." Respondent signed on the signature line and added the date of April 7, 1999. Immediately beneath the signature line, Respondent added: "Notice: Signed under caveat--see letter dated April 7, 1999 sent to Gloria Henderson, Division Director." Respondent's four-page letter to Gloria Henderson dated April 7, 1999, references the Profile, notifies Ms. Henderson and Petitioner of Respondent's intent to sue, and demands that Petitioner omit Respondent's listing from a website of chiropractors because, in part, "I do NOT accept their 'valueless treatment' known as an "adjustment" (it is a waste of money and time), and because I practice health care from an "Allopathic" (medical approach) point of view, including but not limited to, surgery, drug prescription, physical therapy " Respondent states in the letter that the Petitioner's failure to incorporate his comments in all computer files listing him as a chiropractor will result in his filing a federal action under tort and constitutional law seeking $1 million plus punitive damages. The final caveat in the April 7 letter states: My (Roy A. Day) signature on the instant letter, and the associated completed questionnaire, reflects the denial of Roy A. Day to have meaningful access to so-called "licensed attorney" courts of law, and the associated denials of each and all discovery, and trial by jury, and the right to each and all appeals, and the denial to write a brief on appeals, and each and all associated "railroading" of Roy A. Day, with the overlay for "licensed attorney" courts of law to deny the law, facts and evidence existed when they pertained to Roy A. Day, since Roy A. Day is not represented by a so-called "licensed attorney" at $300.00 per hour in artificial-monopolistic legal fees. In addition, the signature reflects each and all associated "forced and coerced" action, specifically, Roy A. Day has been denied "due process and equal protection of the law." On February 6, 1995, Pinellas County Circuit Court entered an Order of Probation. The Order states that Respondent pleaded guilty to aggravated stalking, interception of oral communication, and uttering a check with a forged endorsement. The Order withholds adjudication and places Respondent on probation for two years. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of two counts of the third-degree felony of uttering a check with a forged endorsement, in violation of Section 831.02, Florida Statutes. The checks totaled approximately $20,000, and, sometime between March 13 and May 5, 1993, Respondent passed each check knowing that the signature of his brother, Donald Day, was forged. For each count, the court sentenced Respondent to one year in jail with credit for 130 days he had already served in jail, and the sentences ran concurrently. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of the third-degree felony of aggravated stalking, in violation of Section 784.048(3), Florida Statutes. The stalking consisted of repeated and harassing telephone calls that Respondent made to the house of a person who had, at one time, expressed interest in purchasing a home in which Respondent had an interest, but later decided not to pursue the purchase. The court sentenced Respondent to one year in jail with credit for 133 days that he had already served in jail, and this sentence ran concurrently with the sentences for uttering a check with a forged endorsement. Petitioner lacked a copy of a judgment concerning the interception of oral communications. This offense arose out of Respondent's surreptitious recording of a conversation that he had with a police officer who was investigating the stalking charges. Absent a copy of the judgment, however, insufficient evidence of this conviction exists for the purpose of this disciplinary case. At the final hearing, Respondent explained that he did not disclose these criminal convictions on the Profile because doing so would somehow implicate him as a "co-conspirator" in the injustices perpetrated upon him by the authorities involved in prosecuting these offenses. Respondent falsely failed to disclose on the Profile his convictions for aggravated stalking and uttering a check with a forged instrument. His failure to disclose this information constitutes fraudulent concealment of these criminal offenses. In a fairly straightforward case, Respondent has filed nearly 250 pleadings containing thousands of pages. He also abused the subpoena power of this tribunal by subpoenaing judges and court officials from every level of the federal and state judiciaries. Last but not least, Respondent has defamed and discredited numerous persons without apparent reason, although some question exists whether Respondent is capable of exercising consistent control over the impulses leading to at least some of these utterances. The crimes of which Respondent was convicted may have arisen out of family disagreements, possibly concerning the sale of a family home. Respondent may be obsessively preoccupied with actual or perceived injustices that he suffered as a result of this transaction. Undoubtedly, Respondent compulsively litigates everything that has the most remote bearing upon this transaction, using court files as archives for materials that he believes will vindicate him, despite an ardent and often- expressed repulsion for judges, lawyers, and others connected with the legal system. No penalty but revocation is suitable under the circumstances, absent a showing by Respondent that he has commenced or is continuing therapy and that the prognosis is reasonably good. The record lacks such evidence. Respondent is not unintelligent, nor is he entirely devoid of insight. His thinking, although at times disordered, is capable of impressive organizational efforts, as best revealed by his meticulous organization in his proposed recommended order of what otherwise seemed to be a bewildering variety of materials that Respondent has seen fit to file in this case. Although his behavior seems at times compulsive, Respondent was capable of a certain level of self-restraint, at least during the hearing and when not directly confronting the underlying transaction or crimes. If they occur at some point in the future, successful diagnosis and treatment of Respondent should inform Petitioner's interpretation of the events and behaviors described in this Recommended Order, if Respondent seeks relicensure as a chiropractor.
Recommendation It is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Respondent guilty of violating Section 460.413(1)(j), Florida Statutes, and revoking his license. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2001. COPIES FURNISHED: Joe Baker, Jr. Executive Director Board of Chiropractic Medicine 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Theodore M. Henderson Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Wings S. Benton, Senior Attorney Agency for Health Care Administration Office of General Counsel Medical Quality Assurance Practitioner Regulation--Legal Post Office Box 14229 Tallahassee, Florida 32317-4229 Roy A. Day Post Office Box 33 Tarpon Springs, Florida 34688-0033
Findings Of Fact The Respondent, Joseph A. Buttacavoli, is a licensed chiropractor, having been issued license number 00335. The Respondent practices chiropractic at 7162 Beneva Road, Sarasota, Florida 33583. (See Prehearing Stipulation.) On July 6, 1981, Jeffrey Goldman responded to the Respondent's newspaper advertisement offering a free examination. (See Prehearing Stipulation; Tr. 15.) On July 6, 1981, Goldman was complaining of pain in the neck radiating into the left shoulder. The pain was recent in origin, having started a few weeks prior to July 6, 1981. Goldman had suffered similar problems during the past 10 or 12 years on an intermittent basis, but this instance was more intense than previously experienced. (Tr. 12, 13.) The Respondent performed a free examination consisting of certain orthopedic and neurological tests. (Tr. 73, 77.) The Respondent did not record in writing the results of this examination. (Tr. 117.) Two of the tests were positive on Goldman's left side. (Tr. 73-77.) After completion of the examination, the Respondent tentatively diagnosed a pinched nerve in the neck and recommended to Goldman that x-rays be taken. (Tr. 78.) Goldman consented to the x-rays and was charged $80 for four x-rays which were taken. (See Prehearing Stipulation.) After the x-ray examination, the Respondent concluded that Goldman had a straightening of the normal cervical spine, some arthritic spurring and disc degeneration at the C4/C5 and C5/C6 level, and several vertebral misalignments. (See Prehearing Stipulation; Tr. 87.) The Respondent advised Goldman that his condition was serious and recommended treatment for 90 days. (See Prehearing Stipulation.) The Respondent told Goldman what the 90 days' treatment would cost and advised Goldman that the cost would be less if paid in advance. The Respondent practices a chiropractic technique known as Grostic or orthospinology. (Tr. 53, 55.) A diagnosis cannot be reached without x-rays using the Grostic technique, and the Respondent takes x-rays in every case except those in which the problem is muscular or x-rays are refused by the patient. (Tr. 115, 116.) The preliminary or free examination is the basis for the Respondent's recommending that x-rays be taken. (Tr. 117.) In the Grostic technique, a complex analysis of x-rays is the basis for a final diagnosis. This requires that x-rays be taken of the patient to apply the technique. (Tr. 59-63, 117-118.) In addition to the x-rays, which were kept by the Respondent as part of the record, Goldman's history/interview form was also maintained. (Tr. 48.) The x-rays on file and the medical history form constitute sufficient justification for the recommendation made by the Respondent to Goldman. The diagnosis of Goldman's problem was based upon his history, a physical examination and x-ray findings. These findings were reviewed by Dr. George Stanford Pierce, who verified the Respondent's suggested course of treatment based upon the records the Respondent maintained. (Tr. 150.) Goldman refused further treatment by the Respondent. (Tr. 26.) No evidence was received that the Respondent practiced chiropractic with less than the required level of care, skill and treatment recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed by the Petitioner against the Respondent, Joseph A. Buttacavoli, be dismissed. DONE and RECOMMENDED this 12th day of July, 1983, 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 12th day of July, 1983. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Michael R. N. McDonnell, Esquire 600 Fifth Avenue, South, Suite 301 Post Office Box 8659 Naples, Florida 33941 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as observation of the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent Calabro has been licensed as a chiropractic physician in Florida, having been issued licensed number 1755. In March of 1978, Diana Avery, then a sixteen (16) year old junior in high school, went to respondent for the treatment of recurrent pain in her kidney area, headaches, dizziness and swelling in her feet, ankles and hands. She had been referred to the respondent by her stepfather who was also one of the respondent's patients. At the time of her initial visit, Miss Avery had never been to a chiropractor and had never had a breast examination or a pelvic examination. She continued to go to respondent for treatment until early June, 1978, far a total of approximately fourteen (14) visits. During her treatments, only respondent and Miss Avery were in the treatment room. During her treatment sessions, Miss Avery wore a patient gown which was open in the back, but tied at the neck, and underpants. On her initial visit, respondent untied the patient gown and, while she was sitting up on the examination table, respondent instructed her to hold her arms out to the side and he then placed both his hands on her two breasts. He made a comment to her about the large size of her breasts. On several subsequent appointments, respondent untied Miss Avery's gown and placed both hands on her breasts. On one occasion respondent stood behind her and, with both his hands, fondled her breasts. On several occasions, respondent would instruct Miss Avery to remove her underpants and lie with her back on the examination table, with her knees up and her feet positioned on the table. Respondent would then insert, without the benefit of gloves, or other protective covering or lubrication, one or more of his fingers into her vagina and manipulate his fingers in and out of her vagina, while resting his other hand on her abdomen. On one occasion, the same procedure was followed except that Miss Avery was lying face dawn on her stomach. The insertion of respondent's fingers into Miss Avery's vagina occurred on from four to six occasions. During at least one of the treatment sessions, Miss Avery was positioned face dawn on the examination table and respondent, while adjusting her neck, moved her hair aside and began kissing the back of her neck. On another occasion, he took her hand and placed it on his genital area. After her last appointment with respondent, Miss Avery needed to pick up some insurance forms. Respondent told her to come into his office after the treatment. When she went into his office, the lights were out, respondent pinned her against the wall and attempted to kiss her. He also was lifting her skirt and attempting to put his hand into her underwear. He advised her that a sexual relationship with him would be good for her. The patient records for Miss Avery do not reflect that either a breast examination or a pelvic examination were performed by the respondent. During the period of time between March and June of 1978, Miss Avery was taking birth control pills to regulate her menstrual cycle. While a breast examination by a chiropractor may be proper for a patient taking birth control medication, the appropriate method of performing such an exam is to palpate each breast with the fingertips of both hands to determine if there are any masses or growths. When a pelvic or gynecological examination is necessary, it is proper to have a nurse in the room, to inform the patient of the procedure and to utilize surgical gloves or other protective covering and a lubricating agent. Such examinations should be recorded on the patient's medical records. Gail Henke went to respondent from May to October of 1980 for treatment for injuries she received in an automobile accident. She was experiencing numbness in her hips and legs, back pain and problems with her left knee. Mrs. Henke was then 26 years old, was married and had one child. During the treatment sessions with respondent, she would wear only a gown which tied in the back, with nothing underneath, and lie on the examination table on her stomach. On many occasions, particularly near the end of her treatment period, respondent would insert the fingers of one of his hands, without protective covering or lubrication, into Mrs. Henke's vagina while placing his other hand on her buttocks or lower back. Several days prior to her last visit for treatment by the respondent, Mrs. Henke called his office and spoke to Rose Oppenheimer, respondent's receptionist, about a problem she was having with a difficult bowel movement or hemorrhoids. On her October 15, 1980, appointment, respondent adjusted her back, left the treatment room and returned with an ointment which he rubbed on her from her shoulders down into her vaginal area. He then placed a plastic- covered pillow under her abdomen and a towel between the upper thigh portion of her legs. Without saying anything to her, respondent straddled the table, placed one hand on her buttocks or lower back area and inserted the fingers of his other hand into her vagina. Then, both respondent's hands were removed from Mrs. Henke's body and she heard the sound of a metal zipper. She then felt one of respondent's hands back on her hip or lower back, felt fingers go back into her vagina, then pull out, and then felt something else go into her vagina and two hands on her back. Believing that respondent had placed his penis into her vagina, Mrs. Henke raised up on her elbows and asked respondent what had happened. Respondent said nothing. Respondent then withdrew all parts of his body from Mrs. Henke, but remained at the foot of the table. Some two to three minutes later, respondent came around to the head of the examination table, crouched or knelt down, and told Mrs. Henke that nothing had happened. She repeatedly asked respondent what he had done and told him what she thought had happened. He explained that she could have experienced such a sensation from the towel which was placed between her thighs or from hemorrhoids. Mrs. Henke immediately told her husband about the October 15, 1980, incident with respondent and he urged her to report the matter to the sheriff's office. At the request of the Sheriff's office, Mrs. Henke went to respondent's office on October 31, 1980 equipped with a body bug or transmitter and attempted to elicit from him information as to what transpired during her October 15th appointment. Respondent repeatedly denied that anything had happened and attempted to explain to her that the sensation she felt could have resulted from the relaxation of distended blood vessels in the area of her hemorrhoids. During the hearing, respondent testified that he conducted a visual inspection for hemorrhoids on Mrs. Henke on October 15, 1980, but found no evidence of hemorrhoids. The vaginal manipulations performed by the respondent on both patients Avery and Henke are not acceptable chiropractic manipulations, techniques or modalities. There is no recognized chiropractic treatment or technique which includes the insertion of fingers into the patient's vagina. There is a form of treatment performed by chiropractors known as the Logan Basic Technique. Respondent states that he used this technique on both Miss Avery and Mrs. Henke. This form of treatment requires the patient to lie on her stomach and involves the placement of the chiropractor's thumb at a point between the anus and the vagina and the application of pressure at that point, with the chiropractor's other hand being placed on the patient's lower back. While it is possible that the chiropractor's hand or fingers may come in contact with the patient's vaginal area during the administration of the Logan Basic Technique, it would not be appropriate for the chiropractor's fingers to actually enter or penetrate the vagina.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent be found guilty of violating Sections 460.412, 460.413(1)(u) and 460.413(1)(w), Florida Statutes, and that his license to practice as a chiropractic physician in Florida be revoked. Respectfully submitted and entered this 18th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18 day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Ms. Jane Raker Regulation - Legal Services Executive Director Post Office Box 1900 Board of Chiropractic Orlando, Florida 32802 130 North Monroe Street Tallahassee, Florida 32301 Joseph G. Donahey, Jr., Esquire 13584 49th Street North Suite A Clearwater, Florida 33520 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task 4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis. Dr. Densmore admitted that many doctors order these tests as a general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur." The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response, intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received. Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of 70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.
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 denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 18th day of February, 2002. COPIES FURNISHED: Ken Allan Niebrugge 4785 Barkley Circle No. 22 Fort Myers, Florida 33907 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of paragraphs (i), (m), (n), (r), and of Section 460.413(1), Florida Statutes, as set forth in a five-count Administrative Complaint.
Findings Of Fact The Respondent is a licensed chiropractic physician, having been issued license number CH 0002560. He has been so licensed at all times material to this proceeding. On or about March 4, 1994, patient L. M. was involved in a motor vehicle accident. On November 7, 1994, patient L. M. presented to the Respondent with the following ten major complaints: frequent headaches, neck pain, black stool, upper- back pain, mid-back pain, lower-back pain, painful feet, bilateral thigh pain, bilateral knee pain, and bilateral calf pain. The Respondent presented his fee schedule to patient L. M. and the patient signed a copy of the fee schedule. The fee schedule stated, among other things, that missed appointments would be charged to the patient. The patient was a nursing assistant who had been treating herself at home with hot water and Tylenol. On November 7, 1994, the Respondent took a surgical and medical history, a history of the March 4, 1994, accident, a history of the onset of symptoms, and a history of the home care the patient had been attempting. The Respondent reviewed the nature of the patient's pain and how each area of her body was affected by her activities. The Respondent decided to perform physical, orthopedic, and neurological examinations of the patient. He also decided to obtain x-rays of her pelvis, of the lumbar, dorsal, and cervical areas of her spine, and of both of her knees. On November 8, 1994, the Respondent saw the patient again, at which time he began an examination of the patient by noting her height and weight, making a structural visual evaluation, checking her motor coordination, performing a cardiovascular examination, measuring her extremities, performing a sensory examination, and checking her reflexes. On November 8, 1994, the Respondent also took x-rays of the patient and read the x-rays that same day. The x-rays revealed subluxations. Based on the information he had obtained up to that point, the Respondent elected to commence treatment to the patient's lumbar spine. On November 8, 1994, he adjusted the patient's lumbar spine and also applied ultra sound and low voltage to the patient's lumbar spine. Where there are many complaints involving several areas of the patient's body, it is not unusual for a chiropractic physician to begin treatment prior to the completion of the full examination. It is not a deviation from the appropriate standard of care for a chiropractic physician to begin treatment prior to the completion of the full examination under such circumstances. Under the circumstances presented by the patient in this case, it was reasonable for the Respondent to commence treatment to her lower back on November 8, 1994, and to complete the examination the following day. On November 9, 1994, the Respondent did range of motion measurements and performed various orthopedic tests. He also performed a series of muscle tests. Based on the information he received on November 7, 8, and 9, 1994, the Respondent developed a treatment plan and treatment goals. His treatment plan called for adjustment to subluxated vertebrae and knees, ultrasound for tissue repair, low voltage muscle stipulation for spasm, traction to decrease intersegmental joint irritation, and acupressure for stimulation of the acupuncture points. He also proposed to brace the knees and the lumbar spine. The Respondent noted in his records that his treatment goals were to stabilize the patient's condition, increase range of motion, promote tissue repair, decrease spasm, and reduce subluxation. The Respondent also recorded a treatment frequency plan which provided for daily treatment for the first one or two weeks, followed by three weeks of treatment at a frequency of three times per week. The frequency plan was to be reevaluated at the end of one month. The Respondent's records provide a reasonable rationale for the services provided to the patient on November 7, 8, and 9, 1994. The course of treatment of the subject patient consisted of chiropractic adjustments and physiotherapeutic modalities such as low voltage, ultrasound, and traction. Chiropractic adjustment is performed to promote the reduction of subluxations, to increase the healing processes within the body, to increase the normal transmission of nerve impulses, and to reduce spasm. Ultrasound is administered to affect tissue where two dissimilar tissues come together. Low voltage stimulation is designed to relax tissue. All of the treatments administered by the Respondent were designed to meet the treatment goals he had previously established. Such treatments were consistent with a therapeutic outcome. The Respondent's course of treatment was appropriate for the various complaints and symptoms presented by the subject patient. The x-rays taken by the Respondent were appropriate under the circumstances presented by the subject patient. Justification for those x-rays is contained in the patient records. On December 16, 1994, the patient was involved in a second motor vehicle accident. The Respondent's records contain a history regarding the second accident. The Respondent obtained a copy of the accident report regarding the second accident. He also obtained x-ray reports from the hospital to which the patient was taken after the second accident. The Respondent noted in the patient records that he was going to continue with the same course of treatment following the second accident. That was a reasonable course of action under the circumstances of this case. Following the second motor vehicle accident, the Respondent concluded there was reason to suspect that the patient had a herniated disc. This conclusion was based on the chronicity of the patient and the acuteness of her problems. Accordingly, the Respondent ordered an MRI. The Respondent's patient records document a reasonable basis for the tests he ordered for the patient. The testing was reasonably calculated to assist in arriving at a diagnosis and treatment plan for the patient. The Respondent's patient records are legible in all material details. The few instances of illegible words do not materially affect an understanding of what is written in the records. The Respondent's patient records are sufficient to meet the record-keeping requirements of the rules that were in effect at the time the records were created. On or about November 7, 1994, the Respondent billed the patient's insurance company for a detailed one-hour consultation. On or about November 8, 1994, the Respondent billed the patient's insurance company for a half-hour consultation, a spinal adjustment, and two therapeutic modalities. On or about November 8, 1994, the Respondent also billed the patient's insurance company for skull, neck, thoracic, lumbar, left and right knee, and pelvic x-rays. On or about November 9, 1994, the Respondent billed the patient's insurance company for completion of the detailed physical, orthopedic, and neurological examination. Each time the patient visited the Respondent's office, the Respondent billed for an office visit. On numerous occasions, the Respondent billed the patient's insurance company for an office visit and for manipulations on the same day. On or about December 6, 1994, the Respondent billed the patient's insurance company for an office visit and for a re-examination. On or about January 3, 1995, the Respondent billed the patient's insurance company for an intermediate office visit and a consultation. On or about January 18, 1995, the Respondent billed the patient's insurance company for multiple vertebral segment manipulations. The Respondent has his own unique billing system in place. He does not use the current procedural terminology codes that are generally used by other chiropractic physicians in their billing.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997.
