The Issue The issue presented herein is whether or not Petitioner's appeal of the denial of his chiropractic licensure should be sustained.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner was an unsuccessful candidate for the November 16, 1986, Chiropractic Licensing Examination. At the same time, Petitioner took a separate certification exam for the use of physiotherapy along with the chiropractic exam. Petitioner passes the chiropractic exam and was granted a license, however he failed the physiotherapy certification section of the exam. Petitioner obtained a score of 67.5 on the physiotherapy certification portion of the exam and a score of 75 is required for passing. Respondent endeavored to maintain a record of the entire oral examination by use of a tape recording. A tape recordation of Petitioner's exam was attempted in this case, however questions 2-6 and part of question numbered 7 was not recorded. Petitioner therefore restricted his challenge to questions 8, 9 and 10. Respondent has agreed and now offers Petitioner to sit for a re- exam without payment of the exam fee in order that he may demonstrate minimal competency and to have a complete record of his response if he cared to review them after sitting for the examination. The oral practice examination for physiotherapy certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for licensure certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3 which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimal competency and a score of 4 is given when a candidate demonstrate superior or expert knowledge in the subject area tested. Petitioner received a total raw score of 54 out of possible 80 which equates to 67.5% and, as stated, a score of 75% or 60 of a possible 80 points is required to pass the chiropractic oral practical examination. One examiner gave Petitioner a total score of 26 and the other examiner gave Petitioner a score of (Respondent's exhibit 1). Petitioner was granted discovery of the portion of the examination that was recorded in order to secure expert testimony as to the correctness of his responses. Petitioner presented no expert testimony but instead testified himself and cross-examined the Department's witnesses. Petitioner failed to demonstrate that the grades he was assigned were devoid of logic or reason. Dr. Sandra Woodruff, a licensed chiropractor with 19 years experience and an expert in the grading of chiropractic examinations, reviewed Petitioner's examination and was present to rebut any experts that Petitioner may have sought to introduce. Dr. Woodruff originally observed the missing portions of the tape recording of Petitioner's exam and had recommended no change to Petitioner's grade. However, Dr. Woodruff considered Petitioner's responses to questions 8 and 10 to be correct and she, personally, would have given him a score of 4 on both questions. She thought however, that his answer to question number 9 should remain a 3 as he received by both graders. Petitioner should not receive a passing grade based on Dr. Woodruff's evaluation of Petitioner's entire examination. Dr. Woodruff expressed concern for the public health, safety and welfare because of the graders comments on the questions in which Petitioner received a failing grade. (Respondent's Exhibit 3). Even if Petitioner was given an additional two (2) points combined for questions 8 and 10, he would still not receive the minimum required score for passing. It is here found however that the graders correctly assigned Petitioner a score for his responses to questions 8 and 10 and failed, during the hearing, to present clear and convincing evidence to disturb such scores.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a Final Order finding that Petitioner failed to demonstrate that he met the minimal criteria for passage of the challenged chiropractic examination and deny his request for licensure. DONE and ORDERED this 14th day of November, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Clifford Shooker 2681 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation, Board of Chiropractic Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner was a candidate for the May 1988, Chiropractic Physiotherapy certification examination. The exam consists of a written and an oral part, covering various areas of chiropractic physiotherapy. The written and oral parts of the exam are graded separately and a candidate must score 75 points on each part in order to pass and be certified in Physiotherapy. Petitioner had previously passed the written portion of the exam and was attempting only the oral portion of the physiotherapy exam. Petitioner claims he was incorrectly graded on the oral exam in the areas of manual, ultrasound and galvanic therapy. At the hearing Petitioner abandoned his claim that he was incorrectly graded on the galvanic therapy portion of the exam and that claim is not considered further for purposes of this recommended order. Petitioner obtained a score of 66.6 on the oral exam. The oral practice exam for physiotherapy certification is graded subjectively according to a candidate's response to questions asked by two grading chiropractors. The graders have been licensed to practice chiropractic for more than five years in Florida and have undergone some grade standardization training prior to examining the candidate for certification. Each grader assigns his or her point score independent of the other grader. A candidate's response therefore has two scores assigned by each grader. The points given by each grader are totalled. The two totals are then averaged together for the overall score on the exam. Some difference in the points assigned often occur. However, the difference between the two scores seldom exceeds 1 point and would therefore not be an unreasonable discrepancy when consideration is given to the effects of grading a subjective test and the effects of averaging the two point scores given by each grader. The grade range is from 1-4 points with one being the lowest score and four being the highest score. A score of 4 points is given when a candidate demonstrates superior or expert knowledge in the subject area tested. A score of 3 points is given when a candidate demonstrates minimal competency in the subject area tested. A score of 2 points is given when the candidate's answer is wrong but not dangerous to the patient. A score of 1 point is given when a candidate's response is wrong and dangerous to the patient. Dr. Brennan scored a 1.5 and 2.5 on the manual portion of the exam and a 1.5 and 2.5 on the ultrasound portion of the exam. In both instances Petitioner's answers to the questions covering the manual and ultrasound areas of the exam were wrong. Therefore the scores given by each grader could not exceed 2.9 points. Even if the highest allowable score is awarded for Petitioner's responses the additional points are not sufficient to raise Petitioner's score to a 75. Based on the above facts Petitioner has failed to present sufficient evidence to establish that he should be certified in Chiropractic Physiotherapy. More importantly, however, Petitioner's answer to the ultrasound portion of the exam was wrong and dangerous to the patient. Petitioner was clearly confused by the manner in which the question was asked by the examiner. However, the confusion did not exclude the candidate's ability or opportunity to give the correct answer in order to take the safest course of therapy to the patient. To Petitioner's credit he did demonstrate competency in his responses to the other question pertaining to the ultrasound area. It was the application of that knowledge that Petitioner failed to demonstrate. The explanations given by each grader, justifying a failing score given to the candidate, reflect the above. Therefore, neither of the graders scores on the ultrasound portion of the exam can be said to be incorrect and should remain the same. Petitioner failed to demonstrate that the two grader's scores on the manual and ultrasound portion of the exam were devoid of logic or reason for its respective assignment. Petitioner, therefore, failed to demonstrate that he was incorrectly graded on the oral exam and should be certified in Chiropractic Physiotherapy.
Recommendation Based on the foregoing Findings of Fact acid Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that he was incorrectly graded on the Chiropractic Physiotherapy exam and should be certified in the area of Chiropractic Physiotherapy. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX The facts contained in paragraphs 1, 2, 3 and 4 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 5 and 6 of Respondent's Proposed Findings of Facts are subordinate. COPIES FURNISHED: Brian P. Brennan 5828 Rawson Lan Pensacola, Florida 32503 E. Harper Field General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Kenneth Easley Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Pat Gilford Executive Director 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729
The Issue The issue in this case is whether Patrick Dennis (Petitioner) should be granted additional credit for any physical diagnosis practical examination questions which he answered on the May, 1990, chiropractic examination administered by the Department of Professional Regulation (Respondent), or whether, in the alternative, he should be permitted to retake the chiropractic practical examination at no additional charge.
Findings Of Fact Petitioner is a graduate of the New York Chiropractic College, is licensed to practice chiropractic in New York and New Jersey, and is seeking licensure as a chiropractor in the State of Florida. He took the chiropractic practical examination administered by the Respondent in May, 1990, receiving grades of 96.6% in X-ray interpretation, 95.3% in technique, and 63.75% in physical diagnosis. A grade of 75% on each portion of the practical examination is required to pass. After receiving notification that he had failed the examination, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam. It was established that the practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam, and was qualified to serve as an examiner. At hearing, the Petitioner solely disputed the score he received in the content areas of general physical examination and laboratory diagnosis. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 1 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 5 content areas in the May, 1990, chiropractic practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, out of a possible 4 credits, the Petitioner received a grade of 1 and 1.5 from his two examiners in general physical examination, and grades of 1.5 and 2 from the examiners in laboratory diagnosis. In this case, the Petitioner has presented challenges to the grades he received on these two content areas of the practical exam, general physical examination and laboratory diagnosis. Since there are five portions of the physical diagnosis exam, and an average of 75%, or an average score of 3, is required to pass the examination, a cumulative average score of 15 (3 points times the 5 exam areas) is required. The Petitioner's cumulative average score was 12.75, or 2.25 points short of passage. Thus, he would have to receive an increase of 2.25 points in the average of the grades he received from the two examiners on the general physical examination and laboratory diagnosis portions of the exam, in order to receive an overall passing score. Regarding the general physical examination content area, the Petitioner was asked to describe how a prostate examination should be conducted. Petitioner understood that this was a rectal exam, but he testified that he was not trained to perform such examinations at New York Chiropractic College, and he had not seen one performed. Therefore, he could not, and did not, describe how to perform a prostate exam. The evidence is conflicting concerning whether New York Chiropractic College offered instruction in prostate examinations. The Petitioner testified that such instruction was not offered, but Dr. Todd Zazulia, who graduated from that college in 1978 and who is a licensed Florida chiropractor, testified that such instruction was offered at New York Chiropractic College. Documentary evidence received from the Dean of Academic Affairs at New York Chiropractic College, Dr. Anthony Onorato, confirms Dr. Zazulia's testimony. Dr. Salvatore D. LaRusso graduated from this same college in 1984, after Petitioner and Dr. Zazulia, and he testified that instruction in the examination of the prostate was not offered at that time. The Petitioner testified that he was taught to recognize signs and symptoms associated with prostate problems since they cause lower back pains, and that he was taught laboratory tests that would signify prostatic problems. He admitted that he felt an obligation to recognize potential problems from signs and symptoms associated with the prostate. The greater weight of the evidence supports the Respondent's position that the Petitioner was offered instruction in signs and symptoms of prostate problems, as well as rectal prostatic examinations, at New York Chiropractic College. Therefore, the Petitioner has failed to establish that he should not have been asked a question about prostate examinations on his practical examination. The Respondent introduced competent substantial evidence to establish that some chiropractors in Florida do perform prostate examinations, and that this practice is within the recognized scope of practice of chiropractic in Florida. Although a substantial number of chiropractors in Florida do not perform this examination, and although there is evidence that it is a violation of chiropractic licensing statutes and rules in a majority of states for chiropractors to perform prostate examinations, nevertheless there is no evidence that the Florida Board of Chirporactic has adopted any rule or taken any action against any chiropractor in Florida for performing such examinations. In fact, Dr. Phil Leon, a licensed Florida chiropractor and licensure examiner, testified that he has asked a question about prostatic examinations of almost every applicant he has examined over the past five years. Documentary evidence submitted by the Respondent from other examiners confirms Dr. Leon's testimony that such questions are a regular part of the chiropractic practical examination in Florida, and also indicates that prostatic examinations are covered on the exam given by the National Board of Chiropractic Examiners. Even Dr. Thomas P. Toia, who was called on behalf of the Petitioner, testified that the ability to recognize prostate problems is within the scope of the practice of chiropractic, and that prostate examinations are an authorized chiropractic procedure. Based on the evidence in the record, it is found that the Petitioner has not established that the grades he received on the general physical exam content area of the practical examination were arbitrary or capricious. Dr. Leon testified that he gave the Petitioner a grade of 1.5 because he did not know where the prostate was, could not describe how to perform a prostate examination, and did not evidence an awareness or understanding of the fact that pain in the low back area could be related to the prostate. Dr. Zazulia testified that he also would have given the Petitioner a grade of 1.5. Dr. Toia testified that when a candidate has no knowledge about a particular question, a grade of 1 is appropriate. Regarding the exam content area of laboratory diagnosis, the Petitioner was asked to identify the tests that should be given to diagnose gonorrhea and lupus. For gonorrhea, the Petitioner identified the chocolate agar test, and for lupus, the Petitioner identified the antinuclear antibody test (ANA). While these are correct answers, the Petitioner's grades in this content area were lowered to 1.5 and 2 by the two examiners because he failed to mention an additional test which can also detect systemic lupus, the LE prep test, and he failed to describe how the lab samples are taken and how these tests are performed in the laboratory. Based upon the evidence in the record, it is found that Petitioner has not established that the grades he received on the laboratory diagnosis content area were arbitrary or capricious. While Dr. Toia testified that he would have given the Petitioner higher grades on this content area, Dr. Zazulia supported the grades given. Dr. Zazulia testified that the Petitioner's failure to inform the patient about what they were likely to expect at the lab when they had the tests performed, and his inability to differentiate the test for gonorrhea as a smear, swab or blood test would result in a grade of 1.5. Because systemic lupus affects almost every system of the body, the Petitioner's failure to identify the LE prep test for complete screening was significant and would result in a grade of 2. There is competent substantial evidence in the record to support the grades which the Petitioner received on the laboratory diagnosis content area of the practical exam.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the May, 1990, chiropractic practical examination in the content areas of general physical examination and laboratory diagnosis. DONE AND ENTERED this 23rd day of April, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1991. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1. This is a conclusion of law and not a proposed finding of fact. 2-4. Adopted in Finding 1. Adopted in Findings 1 and 5. Adopted in Finding 1. Adopted in Finding 7. Adopted in Finding 11. Adopted in Finding 11, but otherwise Rejected as not based on competent substantial evidence. Rejected as irrelevant and immaterial. Adopted in Finding 3, but otherwise Rejected as irrelevant and immaterial. Rejected as simply an excerpt of testimony and not a proposed finding. Rejected as citations to statutes and rules and not a proposed finding of fact. Adopted and Rejected in part in Finding 9, and otherwise Rejected as irrelevant and immaterial. 15-16. Rejected as irrelevant and immaterial. Rejected in Findings 8-10. Adopted and Rejected in Finding 8. Rejected as irrelevant and immaterial Adopted in Finding 2, but otherwise Rejected as irrelevant and not based on competent substantial evidence. 21-23. Rejected as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Findings 11 and 12. Copies furnished: Lawrence J. Langer, Esquire 400 Executive Center Drive Suite 210 West Palm Beach, FL 33401 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792
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.
Findings Of Fact Following the filing of an Administrative Complaint by the State of Florida, Department of Professional Regulation, against Respondent, Saul N. Sherman, Dr. Sherman requested a formal Subsection 120.57(1), Florida Statutes, hearing. The case was subsequently given to the Division of Administrative Hearings to conduct the final hearing and the hearing was held on February 23, 1983. Respondent is licensed to practice chiropractic in the State of Florida and has continually held that license since September 27, 1975. After beginning his practice in Florida, Respondent, together with other licensed chiropractors in the State of Florida, formed an association known as the Florida Chiropractic Council. On April 7, 1980, Dr. Sherman filed an affidavit under the fictitious name statute indicating the intention of the group to utilize the name Florida Chiropractic Council. See Petitioner's Exhibit 4. In 1981, Respondent was the president of the council and held that position at the time of final hearing. During the year 1981, 15 to 20 licensed Florida chiropractors were associated with the council, together with 40 students who were undertaking chiropractic studies. The council collects dues from its members and convenes meetings once or twice a year at which sessions chiropractic functions, chiropractic philosophy, and public education are discussed. In particular, discussion is entered into on the subject of advancing the philosophy of the so-called "straights," chiropractors who do not utilize techniques of physical therapy, nutrition and weight loss programs or diagnostic radiology in conducting their profession. The "straights" limit their involvement to analysis and determination of vertebral subluxation and correction. In 1982, the Florida Chiropractic Council was incorporated in the State of Florida as Florida Chiropractic Council, Inc. A copy of the matters related to the incorporation may be found as Respondent's Exhibit 2. One of the other activities of the Florida Chiropractic Council would be public fairs, at which health related exhibits are displayed and information disseminated to the public on the subject of chiropractic. At these events, member chiropractors answer questions about chiropractic. As a part of this function, brochures, which contain information about chiropractic, are provided to the public. An example of the brochure would be Respondent's Exhibit 1. Members of the Council also conduct free spinal screenings. This involves the touching of the spine to ascertain problems that need attention. If treatment is warranted, the potential patient is referred to a local chiropractor in the area where the potential patient resides. Members of the Florida chiropractic council do not disseminate business cards for the benefit of those individuals being screened, nor in any other fashion attempt to solicit business through this screening process. The essential thrust of the Council's participation in the fairs is that of public education about chiropractic. Members of the council are advised of the upcoming health fairs or other health related fairs. This communication is made by Respondent and through the process, the members know in advance who would be appearing at the various functions, i.e., fairs. Ordinarily, chiropractors would attend the fairs close by their place of practice. Respondent has participated in a number of health fairs, approximately seven in number. He has not participated in three or four other health fair events. One of the health fair events which the Florida Chiropractic Council was involved in was held at the Twin City Mall, North Palm Beach, Florida, beginning on October 22, 1981. In anticipation of that event, an advertisement was placed in the Palm Beach Post, a paper of local circulation. Respondent placed the advertisement. The advertisement offered free chiropractic examination. This advertisement occurred on October 22, 1981, and may be found as Petitioner's Exhibit No. 2. The health fair included participation by other groups, such as dentists, nutritional counselors, American Lung Association, and diet program sponsors, as reflected in the advertisement. Five or six chiropractors within the Florida Chiropractic Council participated, to include Respondent. The names of the chiropractors did not appear in the advertisement. The activities of those chiropractors at the fair are described in the preceding paragraph. When the chiropractors were not available, a lay volunteer handed out literature, namely brochures. See Respondent's Exhibit 2. A similar fair had been held in Tequesta Park, Palm Beach County, Florida, on August 22, 1981, and was advertised in the Daily Journal, a paper of local circulation. A copy of that advertisement may be found as Petitioner's Exhibit 3. Again, reference is made to the type of activities previously discussed, related to functions to be performed by members of the Florida Chiropractic Council on the date of the public event. This event was an annual seafood festival. The advertisement was prepared and placed in the paper by one of the participating members of the Florida Chiropractic Council. Respondent was not that individual. Respondent was told that the Council member was going to place the advertisement prior to making that arrangement. Dr. Sherman did not review the advertisement and did not attend the festival and participate in the activities of the Florida Chiropractic Council. Those activities included functions of the type referred to in the general discussion related to the Florida Chiropractic Council's involvement in health fairs.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed chiropractic physician, holding Florida license number CH 5839. In addition to his chiropractic training, the Respondent has completed a course of study in biomechanics and has received a "Masters of Professional Studies" degree from Lynn University in Human Biomechanical Trauma. He advertised services related to "Human Biomechanical Trauma" to other chiropractic physicians practicing in the same geographic area. On November 29, 2001, a twenty-nine-year-old female (referred to hereinafter as the patient) presented herself to the Respondent's office complaining of back pain of approximately two weeks duration. The patient was a former gymnast with many years of training. Her regular exercise routine included weight lifting, and the onset of her back pain occurred while she was lifting weights. Initially the pain was in the area of her mid-back and during the subsequent weeks had progressed to her lower back, and to her upper back and neck. The patient also had a history of migraine-type headaches unrelated to the weightlifting and for which she had sought previous treatment with limited success from another physician. On November 29, 2001, the Respondent completed a medical history and performed an evaluation of the patient's condition. The Respondent provided treatment and adjustment. During the time the patient received treatment, she removed all clothing but for her underpants, at the Respondent's direction. A robe was provided inside the treatment room for her to wear after undressing and before the treatment was provided. After providing the treatment on November 29, the Respondent referred the patient to another facility for a series of x-rays. On November 30, 2001, the patient returned for additional treatment at which time the Respondent performed an adjustment to the patient's neck and back. After the treatment was completed and the Respondent exited the room, the patient began to dress, at which point the Respondent entered the room holding a digital camera. The patient testified that the Respondent removed her robe, leaving her clad only in her underpants, that the Respondent told her that the photography was a routine office practice, and that he could not continue the treatment unless the photographs were taken. The patient testified that the Respondent was aggressive while the photographs were taken, speaking with a "raised voice" and moving quickly, instructing her on how to pose, and moving her arms and legs into position. The patient testified that during the incident she was scared and in a "dazed state," and that she didn't know how many photos were taken or how much time elapsed during the photo session. She made no attempt to leave the examination room until after the photos were taken. The Respondent denied that he told the patient that the photographic evaluation was a routine office procedure. The Respondent testified that he discussed the photographic evaluation with the patient and that she permitted the photos to be taken. He testified that he both verbally directed and demonstrated by example, the positions in which he sought to photograph the patient. He further testified that some of the positions came from the patient when describing her "activities of daily living." He testified that she participated in the photography willingly and without protest. Other than the Respondent and the patient, no one else was in the room during the time the photographs were taken. The Respondent's offices consisted of a small suite of rooms located in a strip shopping center. Based on the physical structure of the offices described at the hearing, it is unlikely that voices could be raised to the point of "yelling" without others in the office being aware of the situation. There is no evidence that the patient was physically prevented from leaving the office. Although the patient signed a generic release for treatment when she began seeing the Respondent, the patient testified that the release was essentially blank at the time she signed. In addition to the generic consent for treatment form, the Respondent's office had prepared a separate "Consent Agreement Concerning Biomechanic Photographic Evaluation" which provided as follows: Dear Patient: Holistic Healthcare Centers offers Biomechanic Photographic Evaluation for the purpose of specific biomechanic assessment of the patient. The procedure will include some or all of the following: Digital photos of the patient in various positions, movements and activities. These photographs will be taken with the patient partially or completely unclothed, as determined by the physician(s). Processing and analysis of these photographs on computers either on the premises or at another location, to be determined by the physician(s). Reportage to the patient as to the results of the analyses. Restrictions on the use of these photographs include: Photographic data will be kept in password protected locations and will be accessible only by Dr. Scott Baker and Dr. Scott Drizin. Appropriate hard copies of photographs will be kept in the patient's confidential case file, if needed. The photographic data will not be published either in print or electronically without the patient's express written consent. Utilizations of photographs, data and analyses results can be used educationally while protecting the privacy of the patient. I HAVE READ, UNDERSTAND AND CONSENT TO THE ABOVE. Under the conditions indicated, I hereby place myself under your care for those procedures as described above as indicated in your professional judgment. The "Consent Agreement Concerning Biomechanic Photographic Evaluation" provided a space for the signature of the person from whom consent is being sought and for the signature of a witness. The patient did not sign the photographic consent form. At no time did the patient sign any written release specifically allowing the Respondent to take photographs. According to his note handwritten on the "Consent Agreement Concerning Biomechanic Photographic Evaluation," the Respondent became aware at some point that the patient had not signed the photo consent form. A few days after the photos were taken, the patient returned to the Respondent's office and inquired about the photographs. By that time, the digital photo files had been transferred from the camera used to take the photos to a computer located in the Respondent's office. After the patient requested to view the photos, the Respondent went to a computer where the digital photo files were stored. The Respondent and the patient reviewed the photographs for about 45 minutes. During the photo review, the Respondent made comments that could be construed as relating to the patient's posture. According to the patient's testimony, such comments included "you're standing a little to the left on this one and you should be standing more upright on this one" and "see, you're standing crooked, you should be standing straight." During the photo review, the Respondent told the patient that he and his partner, Dr. Scott Baker, were interested in writing a book and pursuing additional medical training. The patient testified that the Respondent may have used the word "biomechanics" during the photo review, but was not certain. After the photos were reviewed, the patient asked for a copy of the digital image files. Initially the Respondent declined to produce the files, but by the end of the appointment, after receiving additional therapeutic treatment and adjustments, the Respondent provided to the patient a disc containing the photo files. According to the patient, the Respondent advised the patient not to show the photographs to anyone. After the patient received a copy of the photo files, she did not again see the Respondent in a therapeutic setting. She cancelled her remaining appointments with the Respondent, obtained her X-rays from the Respondent's practice, and sought treatment elsewhere. After the patient cancelled the appointments, she received at least one call from the Respondent's secretary inquiring as to the reason for the cancellation. During the call, the Respondent spoke to the patient and inquired as to whether there were problems, at which point the patient advised that she would not return to the Respondent for treatment. At the hearing, the Petitioner presented the expert testimony of Dr. Michael Major, a Florida-licensed chiropractic physician. Although Dr. Major appears to be knowledgeable about biomechanics, he has not undertaken any advanced education in biomechanics. Dr. Major testified one of the reasons to use photography in a chiropractic setting would be to observe structural changes that could occur related to treatment. Dr. Major testified that such photos are generally taken from front, side, or rear perspectives, and utilize spinal or anatomical "landmarks" for purposes of comparing pre-treatment and post-treatment conditions. Dr. Major further testified that he has used digital photography in his practice, generally placing subjects in front of a grid-pattern marked on a wall. Dr. Major's grid system also includes a bilateral scale to identify weight-bearing issues. By using the photo of the subject in front of the grid and on the scale, a chiropractic physician is able to show to a photographic subject various spinal or postural conditions. Dr. Major has used this system in marketing services to prospective clients. Dr. Major termed photos taken from positions other than in front of, to the side of, or from behind a patient as "oblique" angle photos. Dr. Majors testified that such photos had very little analytical value because of the difficulty in accurately reproducing at a subsequent date, the angles from which the original photographs were taken, thus making comparison between the sets of photographs difficult. Dr. Major testified that, when taking a later set of photos, where the angle of camera placement relative to the body is different from the original camera placement by only a few degrees, the later photograph would offer little comparative value because the landmarks would not be located appropriately. A review of the photographs in evidence indicates that the patient was photographed in a routine examination room, posed in various positions, and unclothed but for her underpants. At the hearing, Dr. Major reviewed the photos offered into evidence and opined that although some of the photos taken by the Respondent of the patient provided appropriate diagnostic information, others did not. Dr. Major testified where the photos did not contain appropriate diagnostic information, the Respondent violated the applicable standard of care by not utilizing the best techniques in order to isolate planes of motion sufficiently to provide useful information. Dr. Major also testified that the failure to obtain the patient's consent prior to taking photographs was a violation of the applicable standard of care. Dr. Major opined without elaboration that taking the photographs without the patient's consent also constituted sexual misconduct. According to Dr. Major, the failure to have another female present in the room during an exam was not a violation of the applicable standard of care. The Respondent offered evidence related to his use of photography and the development of a "protocol" that he and his partner were creating to document biomechanical evaluations of certain patients. In addition to the Respondent's testimony, the Respondent presented the testimony of Scott M. Baker, D.C., who was in practice with the Respondent at the time of the events at issue. At some point in the mid-1990's, Dr. Baker and the Respondent became interested in continuing their education in biomechanics, and both completed the additional biomechanics training referenced herein. Part of their interests included conducting research to develop a "protocol" for biomechanical evaluation. Part of the protocol included photographic evaluations of patients. The model apparently being followed referenced radiological studies where multiple X-rays from different angles were taken of a patient during diagnostic testing. However, although the Respondent asserted that the photographs were part of the treatment offered to the patient, Dr. Baker testified that the photos were not actually taken for diagnostic purposes. The alleged purpose of the photos was to educate a patient on existing conditions with the ability to demonstrate at a later date, visible progress though the use of comparative photography. Dr. Baker testified that after the Respondent took the photos of the patient, he and the Respondent reviewed the photos and indexed them by reference to anatomical characteristics. Dr. Baker acknowledged that some of the photos "weren't useful," but that it was preferable to err towards taking too many photos rather than too few, and that the intent was to discard those photos that were not useful. The consent form specific to the photographic study also indicates that the photos may be used for educational purposes with appropriate protection of a patient's privacy. Dr. Baker acknowledged that the protocol was in preliminary stages of development and that greater specificity would be required as development continued. Prior to the patient in this case, only one other chiropractic client had been photographed based on the protocol. When the photographs of the patient were taken, the position from which each photo was taken was not recorded. Dr. Baker testified that when subsequent photos were taken for comparative purposes, the photo subject would have to be repositioned based on the earlier photograph, using an anatomical point of reference. No visible grid pattern was present in the room where the patient's photos were taken and no grid is present in the photos taken of the patient by the Respondent. In order to view the photos, the Respondent planned to use a graphics software program called "Paint Shop Pro" which could allow a grid to be superimposed on a photograph. Whether the computer imposition of a grid pattern on a photo taken subsequently would provide specific anatomical references sufficient to compare the photos is unknown. The asserted reason why the patient wore only underpants in the photos was that wearing a bra would alter the center of gravity being measured. The Respondent further testified that wearing a bra could cause a "cutaneous sensory response" that could lead to a "reflex muscle spasm which would alter the center of gravity." The evidence fails to establish why the same reasoning was not applicable to the underpants that the Respondent directed the patient to leave on.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding that Scott Drizin, D.C., is guilty of a failure to practice chiropractic medicine with the level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances, and imposing a fine of $2,500. DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2005. COPIES FURNISHED: Louis Kwall, Esquire Kwall, Showers, Coleman & Barack, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701
