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
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Michael Davis, was licensed as a Doctor of Chiropractic in Florida. Respondent treated Karen D. Moss from December 14, 1984 to January 25, 1985 and pursuant to his treatment, maintained certain records of that treatment. Ms. Moss first met the Respondent when she was going to massage school. In December, 1984, she was involved in a serious automobile accident and, when she failed to feel better afterwards, was referred to him by a co-worker, Ms. Madison. When Ms. Moss first went to Dr. Davis, she had already seen another physician for approximately four weeks and was dissatisfied with the treatment rendered by him. At the time of her first visit with Respondent, her right knee was swollen and felt like it needed to be cracked. Her neck could not be turned and her back was always stiff. She had sharp pains in her neck and constant pain in her right shoulder. Respondent, as a part of his treatment, prescribed massage by Ms. Madison and took one set of x-rays of his patient. He also, in the course of his treatment, used an ultra-sound machine which Ms. Moss could not describe, but even after going to see Respondent for several weeks, three to four times a week, she concluded he was not giving her what she needed and decided to seek yet a third doctor. When she terminated her visits to Dr. Davis, in her opinion, she was not only not improved, but even felt worse. At the time of her last visit with Dr. Davis, on January 25, 1985, she told him she was switching to another physician. At this time, Dr. Davis did not tell her that she had reached maximum medical improvement and recommended, to the contrary, that she continue to come see him. Ms. Madison, who recalls that several weeks after Ms. Moss began treatment with the Respondent, she left him advising Ms. Madison that she was not getting any better. When Ms. Moss first visited Dr. Davis, she filled out a form for him listing her complaints and her history as she knew it. She contends that she listed her back, neck, and right leg injury on the form but review of the form she filled out does not reflect any knee injury though constant knee pain is listed. At the time she filled the form out, she was emotionally unstable and merely wanted to get treatment. She was in pain and did not take a lot of time in filling out the form. To this day, two to three years later, though she has improved and credits this improvement to the treatment she received from other physicians, she still suffers from some of the complaints she had when she was a patient of Dr. Davis. Ms. Moss's records were reviewed by Dr. Robert S. Butler, a chiropractic physician in practice in Miami Shores, who examined them as an expert for the Board of Chiropractic Examiners. In his review, Dr. Butler found no record of a comprehensive medical examination being completed on Ms. Moss or that Dr. Davis took an adequate personal history. The initial examination on December 14, 1984, was not described adequately on any records and the case history form filled out by the patient does not appear to contain any personal entries by the Respondent. His entries appear to include only what appears in the narrative summary produced subsequent to the taking of the history. Any form filled out by a patient should be the basis for the doctor to use to inquire further of the patient in taking a case history. This was not done here by Dr. Davis except very briefly on the first page of the form and it cannot be determined from looking at that who put the entries there. Dr. Butler cannot say, therefore, that the physical examination supposedly accomplished by Dr. Davis was comprehensive as billed to the insurance company by the doctor. After reviewing the doctor's records on Ms. Moss and cross referencing them with each other, Dr. Butler at first found some of them to be repetitious but on closer examination, it appears that the dates do not coincide. There are also several discrepancies which, in and of itself, is not uncommon. In this case, however, the records are so full of discrepancies as to be beyond the common experience. His review of Respondent's progress notes failed to reveal any specificity. Assuming that the records Dr. Butler looked at were contemporaneous with treatment, they are not adequate for a prudent chiropractic physician's minimum standards and he was unable to determine a proper relationship between the diagnosis done by the Respondent and the billings submitted to the insurance company for services reportedly rendered. Dr. Butler was also concerned that the narrative report prepared on the computer for the insurance company contains much information not documented elsewhere in the records, such as blood pressure, pelvic findings, and recitations of procedures done. He is also concerned over an indication of weakness on the part of the patient without evidence of muscle testing. This type of record keeping is not customary and is, in his opinion, not good practice. Even Dr. Brown, Respondent's expert, indicated that when he keeps records on his patients, he marks down almost every test result he receives. Admittedly, he does not necessarily put in all negative findings, but very definitely lists all positive findings. He utilizes a sheet of conditions on which he checks off those the existence of which is shown and it is from this form, along with others, that he prepares his narrative summary. He agrees in essence with Dr. Butler that it is not acceptable practice for a physician to write a report to an insurance company indicating that a patient has reached maximum medical improvement when this conclusions is based on matters outside the patient record. Here, Dr. Butler concluded that the records completed on Ms. Moss by the Respondent are sufficient with regard to format but not as to content. He would not put in narrative form matters which are not documented in the backup forms and the evidence here, the records kept by Respondent, reflect many conclusions in the narrative submitted to the insurance company which are not backed up by test results recorded on exam forms. In light of the fact that both experts agree that Respondent's records were inadequate, it is so found. Dr. Butler examined the records that were furnished to the Department's investigator by Dr. Davis after some substantial reluctance and obfuscation on his part was overcome. In response, Dr. Davis contends that at the time the records were sought of him, he did not produce all of the records he had on Ms. Moss because of the nature and manner in which the subpoena was served and because the subpoena only asked for certain documentation. He contends, however, that he offered his entire file to the investigator, Ms. Pagett, who copied only certain records therefrom indicating that was all she needed. Review of the documentation submitted at the hearing, however, which was all that was submitted by either party, and which was examined by Dr. Butler, leads to the inescapable finding that the records kept by Respondent are minimal at best and appear to fall short of the minimum standards set for the chiropractic profession. Dr. Butler's testimony satisfies the Petitioner's requirement to go forward with the evidence and Respondent has failed to produce any evidence to counter the conclusions drawn by Dr. Butler which are adopted herein as to the sufficiency of the records. The Administrative Complaint alleges that on February 26, 1985, Respondent filed a report with Ms. Moss's insurance company indicating she had reached maximum medical improvement. Dr. Davis admits this was the case but contends that in his professional judgement, she had in fact reached that status at that time and there was nothing more that he could do for her to increase or improve her physical condition. Dr. Butler, concluded after evaluation of the records, that maximum medical improvement had not been reached and from the records, he cannot determine what standards the Respondent applied to reach the conclusion that he had. The patient still had symptoms which needed treatment and in light of the injuries sustained by Ms. Moss, the likelihood is slight that she would have reached maximum medical improvement within the six week period that Dr. Davis was treating her. Dr. Butler concedes that a physician has the obligation to report maximum medical improvement status when that status is reached, but here, he feels, the determination was premature. This no more than a professional difference of opinion, however. Dr. James E. Brown, a chiropractor practicing in Palm Beach Gardens also reviewed the records kept by Respondent on Ms. Moss and as a result of his review concluded differently. He is of the opinion that the Respondent's records on Ms. Moss are adequate and within standards. He feels they would support a conclusion of maximum medical improvement as well. In this regard, Dr. Brown states that the achievement of maximum medical improvement is not based merely on a period of time but on the condition of the patient's body. In the instant case, maximum medical improvement was achieved in a very short time under the Respondent's care. The patient was indicated as being pain free when she left Respondent's care and one does not properly continue to treat patients whose condition is as it was described in Respondent's records. In short, Maximum medical improvement can be reached when a patient is not completely healed and still has a continuing condition. He agrees with Dr. Butler to the effect that definition of the term "maximum medical improvement" is subject to varied interpretations by different physicians and he admits that even if the records show that a patient is pain free, if the patient still has stiffness, continued treatment would be given if there were indications that the patient was still in need of it. Here, neither Dr. Butler nor Dr. Brown examined Ms. Moss. Both relied solely upon the written records kept by Dr. Davis. Ms. Moss, however, still maintains that when she left Dr. Davis's treatment, she was still in pain and, in fact left, because she felt his treatment was not benefiting her. By itself, that might well mean she had reached maximum medical improvement because the experts both agree that an individual may still have pain but have reached the maximum improvement. However, Ms. Moss also relates that when she went to another doctor who continued to treat her, she did improve rapidly as a result of that treatment and it is found, therefore, that Dr. Davis's report of Maximum medical improvement upon Ms. Moss's leaving his care, was, for whatever reason, premature. During August, 1985, Dr. Davis also treated Teresa L'Heureux who had been injured in an automobile accident. As a part of the treatment of Ms. L'Heureux, Dr. Davis issued three prescriptions for a drug, Flexoril. The first two, those written on August 30, 1985 and September 20, 1985, were on prescription pads bearing the printed name of Dr. Sultana and the doctor's rubber stamp signature. The third prescription, on October 12, 1985, was a phone-in prescription which does not bear the name of any physician. Respondent contends that he wrote these prescriptions at the order of Dr. Sultana who had seen the patient prior to the day the prescriptions were issued and directed him to issue them using her prescription pad and a rubber stamp of her signature. Dr. Sultana, on the other hand, denies ever having seen Ms. L'Heureux as a patient; denies having written the prescriptions; denies having signed her name to them; and denies having authorized Respondent or anyone else to stamp them with her signature. What is more, she does not recall having ever called in the third prescription. Dr. Sultana admits to having discussed the matter with Detective Brown who was conducting an investigation into the matter and having told him that she does not stamp her prescriptions. She does not recall admitting to Detective Brown that she had a stamp. In fact, she does not have a stamp of her signature, has never used one, and denies ever having told Respondent to utilize a rubber stamp of her signature in writing prescriptions. Dr. Sultana did some work with the Respondent and served as his mentor in the field of psychiatry. She admits that, as Respondent claims, if it were true that she had called in prescriptions without having seen a patient and were to have allowed Respondent to affix her stamped signature to a prescription for a controlled drug, she could be in severe difficulty with licensing authority. However, she contends she is not denying it for that purpose but because she did not do what Respondent alleges she did, and her testimony, contradicted only by the attacks of the Respondent and his assertion that she did allow him to use her prescription pad as alleged, is accepted. Further, the note taken from what appears to be patient records bearing her apparent signature and ostensibly relating to Ms. L'Heureux, is an obvious forgery in that the note refers to another patient and has been excised from records improperly with an inaccurate date and name placed thereon. Comparison of the handwritten signature of Dr. Sultana on the note with that on the stamped prescriptions and the computer printout indicates that the signatures are dissimilar. It is concluded, therefore, that the stamp signature is not that of Dr. sultana but a forgery instead. Dr. Davis is also alleged to have improperly examined Ms. L'Heureux during a visit she made to his office on December 17, 1985 by, in the course of an examination for a bladder infection, placing his fingers in her vaginal area without first donning rubber gloves and by moving his fingers in and out of her vaginal area making sexually suggestive comments to her while doing so. He is also alleged to have provided unnecessary treatment based on his record of diagnosis and treatment of the patient. Ms. L'Heureux came to see Dr. Davis in October, 1985 after she was involved in a car accident. She had heard his advertisement on the radio and went to see him for relief, During the course of his treatment, he applied heat, electrical muscle stimulation, traction, and adjustments. Ms. L'Heureux claims that on one occasion during a manipulation, while she was laying on her stomach, Dr. Davis placed his hand in between her legs and told her to move. This made her uncomfortable. On another occasion, when he came back into the room after being absent for a moment, he commented that something smelled good. Neither of these actions is considered actionable, however, absent any further evidence of impropriety. On one visit, however, she complained to the Respondent of having urinary problems. She had brought the matter to the attention of the Respondent's technician previously and had been advised to provide a urine sample. When the Respondent came into the area where she was waiting, she mentioned it to him and he had her go back into the examining room where he advised her to take off her pants and examined her. At this time, there was no other female present in the building. During the course of the examination, without using gloves, he pushed with his hands on her lower abdomen and then inserted his fingers inside her. She claims that while doing this he asked her how long it took her to climax and advised her of different ways of climaxing. When he was finished with the examination, he gave her a prescription for flexoril on Dr. Sultana's prescription pad and let her out the door. Ms. L'Heureux indicates that she had never been to a chiropractor before this series of treatments with Dr. Davis and therefore did not know what was appropriate for him to do. She does know, however, that she never met Dr. Sultana. During the course of Ms. L'Heureux' treatment, she saw Dr. Davis every day for the first three weeks and then for three weeks thereafter, every other day. Starting with the seventh week, for two months, she saw him every third or fourth day, returning to be treated by him even after the visit during which he conducted the pelvic examination. She finds it difficult to believe that she saw Dr. Davis for as many times as he billed her for, but she cannot dispute it. Her attorney, when she went to see him referred her to another chiropractor. She continued to visit Dr. Davis even after he did the inappropriate vaginal examination because she had no money and Respondent agreed to wait for her insurance company to pay. He was guiding her with regard to timing and kept telling her not to worry about the fee - that the insurance company would pay - and in fact, he was the one who referred her to an attorney. After she left him to seek the services of another chiropractor, he billed her for a total of $1,996.00 of which the insurance company paid only $600.00. Dr. Davis is suing her for the balance. Dr. Butler examined Ms. L'Heureux' records as well as those of Ms. Moss. At no place in Ms. L'Heureux', except for the narrative billing sent to the insurance company, is there any mention of testing for a urine problem. No lab reports are contained in the records and as a result, the records are deficient in that regard. The results should be reported to the patient at the next visit unless something is extremely wrong, in which case, the patient should be notified immediately. Dr. Butler examined those records of Ms. L'Heureux made available to him and was of the opinion that there was nothing in them to justify the diagnosis made by Respondent much less to justify the billings. He did contend, however, that the use of a medical doctor's signature stamp on a prescription pad would be totally improper for a chiropractor and Dr. Davis, who denies the vaginal examination ever took place, stipulates that a vaginal exam, such as alleged herein, would be an inappropriate diagnostic procedure for a chiropractor. Dr. Davis' reputation regarding his relationship with his patients is somewhat mixed. On the one hand, Ms. Madison, who has known and worked with him for several years, considers him to be a considerate individual who shows concern for his patients who seem to like him. At no time, while she was working for him, did he ever show any sexual interest in any patients and in fact was quite reserved. Others, such as Mr. Mackhanlall, agree. On the other hand, some, like Dr. Kastein, with whom Respondent had a business disagreement, think little of him, his professional capabilities, his ethics, and his personality. Dr. Davis contends that he interviewed and examined Ms. Moss, as alleged in her testimony but asserts, contra to her statement, that he took a personal history and x-rays of her. He claims he made up a chart as to the type 4of manipulation to be done and on each of the periodic visits she made to his office, made progress notes which, though minimal themselves, served to refresh his memory at the end of each day when he dictated into a computed program log, more extensive progress notes on each of the forty or so patients he saw that day. Most of the information placed into the computer in this fashion was from memory, however, and not from his hand-kept progress notes. This is not a system designed to generate much confidence in either his notes or his credibility. Respondent also relates that toward the end of January, 1985, Ms. Moss indicated that she had no more dizziness and in fact, felt better though she still had some stiffness. Finally, she came in and told him she was totally free of dizziness and pain and on January 25, 1985, said she was "ok" and feeling fine. A complete examination which he made that day, he claims, showed normal motion. Based on this examination, he concluded that she had reached maximum medical improvement and so indicated to her insurance company. In March, 1985, he was asked to submit a report to the insurance company which he prepared, based on the computer printout of his daily progress notes. At that time, he had received no information from Dr. Alden, the healer to whom Ms. Moss went after severing her relationship with Respondent, to the effect that she was treating Ms. Moss and no records were requested of him by the insurance company. When the DPR investigator contacted him, he claims he gave her what was requested; no more and no less. As to Ms. L'Heureux, he relates that when he initially examined her he gave her a complete orthopedic and neurological examination. Based on his diagnosis, he prescribed traction, ultra-sound and x-rays. Respondent avers that in August, 1985, Ms. L'Heureux indicated she was having pain and wanted to see Dr. Sultana. He apparently set this up because, he claims, shortly thereafter, Ms. L'Heureux indicated she wanted the prescription Dr. Sultana said she would get. He claims he called Dr. Sultana who directed him to give her the prescription for Flexoril using the stamp signature and pad in her desk drawer. The second prescription was also approved by Dr. Sultana according to Respondent, and he continued to treat Ms. L'Heureux until her attorney told her to see an orthopedic surgeon rather than a chiropractor. Dr. Davis categorically denied ever having conducted any vaginal examination of Ms. L'Heureux and claims that on the day in question, after she had deposited the urine specimen for analysis with his technician, she left the building and that was the end of that visit. Dr. Sultana denies ever having given permission to write prescription on her pad and denies having a stamp of her signature. Having evaluated the testimony of Dr. Davis in this regard, vis a vis the testimony of Ms. L'Heureux, Ms. Moss, and Dr. Sultana, it is clear that Dr. Davis's testimony is the less credible. Evaluating the witnesses and considering the relative probabilities, it is clear that the complainants are the more credible and there is no indication that any of them stands to gain anything by initiating unfounded complaints against him. It is therefore, found that, as to the writing of the prescriptions, Dr. Davis had no authority to write them utilizing Dr. Sultana's pad and a rubber stamp of her signature. As to the alleged incident with Ms. L'Heureux involving the improper pelvic examination, it is found that it did occur as alleged in light of the deposition testimony of Ms. Johnson, a former patient who indicated Respondent, in May, 1983, conducted a pelvic examination on her without first securing her consent. Turning, then to the ultimate issue of the sufficiency of the medical records kept on both patients in question here, Dr. Butler is convinced that the records are inadequate. Dr. Brown to a lesser degree agrees. Consequently, it is found that the records have been shown to be inadequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent's license as a chiropractic physician in Florida be revoked and he be fined a total of $8,000.00, but that so much of the penalty as calls for revocation of the license be suspended for two years under such terms and conditions as are prescribed by the Board of Chiropractic Examiners. RECOMMENDED this 19th day of June, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1987. COPIES FURNISHED: Edward H. Reise, Esquire Suite F 207 11173 N. Kendall Dr. Miami, Florida 33176-0917 Michael Davis, pro se 645 South Military Trail No. 9 West Palm Beach, Florida 33415 Erskine C. Rogers, III, Esquire 2875 South Ocean Blvd., Suite 200 Palm Beach, Florida 33480 Van Poole, Secretary Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation Board of Chiropractic 130 North Monroe St. Tallahassee, Florida 32399-0750 APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4108 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties hereto: By the Petitioner Petitioner's counsel, notwithstanding, the oral comments made by the Hearing Officer at the conclusion of the hearing regarding the format of the Proposed Finding of Fact, failed to number the paragraphs to facilitate identification herein. This has therefore been accomplished by the undersigned. Findings that at all times in issue, Davis licensed as a chiropractor in Florida, Findings of Fact's 1-29 relate to the 2nd Administrative Complaint. Findings of Fact's 30-46 relate to the first. The remainder go to the issue of the credibility of the Respondent as a witness and relate to both. Accepted and incorporated herein. Rejected as immaterial except as to the fact that after leaving Respondent's treatment, the patient was seen and treated by an osteopathic physician. 3-5. Accepted and incorporated herein. 6. Accepted and incorporated herein except for the last two sentences which are irrelevant. 7-9. Accepted and incorporated herein. 10. Rejected as not a Finding of Fact. 11-14. Rejected as not Findings of Fact but mere comment on the evidence. The ultimate finding that Respondent conducted an examination of S.J. is accepted. Irrelevant and cumulative. Rejected as an improper finding of fact. 18-20. Irrelevant. Rejected as a comment on the evidence and not a finding of fact. Accepted and incorporated except for the last sentence which is comment on the evidence and not a Finding of Fact. 23-25. Rejected as a summary of the evidence and not a Finding of Fact. Rejected. Rejected as a summary of evidence and not a Finding of Fact. 28-29. Rejected as a comment on the quality of the evidence, not a Finding of Fact. Accepted and incorporated herein. Accepted except for the last sentence which is a comment on the evidence and not a Finding of Fact. Accepted and incorporated herein. Rejected as irrelevant as a Finding of Fact. 34-38. Rejected as a summary of the evidence and not a Finding of Fact. 39-43. Rejected as a summary of the evidence and not a Finding of Fact. Accepted as to medical justification - Rejected as to nature. Accepted and incorporated herein. Rejected as a comment on the evidence and not a Finding of Fact. 47-48. Rejected as irrelevant. 49-50. Cumulative. 51. Rejected. For the Respondent Respondent does not identify Findings of Fact. Paragraph numbers start with 6. 7 a. Rejected as a summary of evidence. Accepted. Rejected as a summary of the witness's testimony. 9 a. Accepted. Accepted. Rejected as a summary of the witness's testimony. 11 a. Accepted. Rejected as contra to the weight of the evidence. Rejected as a comment on the evidence. d-g. Rejected as a summary of the evidence - not a Finding of Fact. 13 a-c. Rejected as a summary of the evidence. 15 a. Rejected as contra to the evidence. b-c. Irrelevant. 17 a. Accepted. Irrelevant. No evidence before the Hearing Officer. Not supported by evidence of record. e-f. Irrelevant. 19 a. Accepted that Sx 3 was a called in prescription. b. Rejected as comment on the evidence. c-f. Rejected as a summary of the evidence. Not proven. Accepted 21 a-b. Irrelevant c-e. Rejected as a summary of evidence and not a Finding of Fact.
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
The Issue The issues in this case are whether Respondent committed the allegations contained in the Corrected Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed chiropractic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Chiropractic Medicine has found probable cause to suspect that the chiropractic physician has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a chiropractic physician licensed in the State of Florida, having been issued license number CH 2363. Background / Arrangement with Dr. Wagner In or around 1975, Respondent completed his training at the National University of Health Sciences and began to practice chiropractic medicine shortly thereafter. Some 15 years later, Respondent and an acquaintance—— Dr. Joseph Wagner, also a licensed chiropractor in the State of Florida——matriculated at a medical school in the Dominican Republic. Although both Respondent and Dr. Wagner ultimately earned Doctor of Medicine ("MD") degrees in the mid 1990s, Respondent was not licensed in Florida to practice as an MD until early 2006. Significantly, Dr. Wagner never obtained licensure as a medical doctor. In 2007, Respondent and Dr. Wagner entered into a joint venture designed, in the words of Respondent, to "expand" Dr. Wagner's chiropractic practice. At that time, and for the duration of their business agreement, Respondent's principal place of business was located in Palm Beach County, while Dr. Wagner practiced chiropractic medicine in Daytona Beach. Under the joint venture (which continued until August 2011, when both their offices were raided by the Federal Bureau of Investigation), Respondent traveled to Daytona Beach several times each month and interacted with Dr. Wagner concerning some, but not all, of Dr. Wagner's chiropractic clients (hereinafter "joint-venture clients" or "JVCs"). From what can be gleaned of the credible portions of Respondent's deposition and final hearing testimony, it appears that Respondent's activity with respect to JVCs included a review of client files, and, in some cases, a determination that one or more medications——including narcotics——should be prescribed. Indeed, Respondent's level of participation was so minimal that his face-to-face interaction with JVCs consisted, at most, of an initial introduction, and on no occasion did Respondent personally examine——or perform treatments upon——any JVC. At the conclusion of an office visit, Dr. Wagner——and Respondent, if the JVC was seen on a day when Respondent was present in the Daytona office——dictated medical notes that Dr. Wagner usually transcribed at a later time. Respondent has acknowledged, both at the final hearing and during his deposition, that he provided Dr. Wagner with blanket authority to create claim forms and medical notes in connection with each JVC. Incredibly, Respondent also granted Dr. Wagner complete authority to affix his (Respondent's) signature to claim forms and submit them——without Respondent looking at the forms beforehand——to insurance carriers for reimbursement. This was accomplished not by the use of a stamp, which medical professionals often provide to their subordinates to expedite business affairs, but by Dr. Wagner manually signing, in cursive, "John P. Christensen" inside the box of the claim form labeled "signature of the physician or supplier." Another unusual aspect of the business arrangement between Respondent and Dr. Wagner was the manner in which they dealt with reimbursement checks from insurance carriers. By agreement, reimbursement checks for claims that related to JVCs were received by mail at Dr. Wagner's place of business in Daytona Beach. Upon their receipt, Dr. Wagner deposited the checks into a SunTrust checking account for which Respondent had sole signatory authority. At the end of each month, Respondent would transfer the entire balance of the SunTrust account into his business account at PNC Bank. Shortly thereafter, Respondent would draft a check on the PNC account to Dr. Wagner in an amount equal to 50 percent of the monthly proceeds.2/ Against the foregoing backdrop, the undersigned will turn to the specific allegations enumerated in the Complaint, namely: that Dr. Wagner, in connection with JVCs, submitted claims to an insurance carrier for services that were never provided——i.e., he overbilled——and that Respondent approved, authorized, and/or knew or should have known of the misconduct (as charged in Counts One and Three); and that the Respondent and Dr. Wagner's billing practices with respect to the four JVCs constituted fraudulent, deceptive, or untrue representations related to the practice of a profession (Count Two). The undersigned will begin with a discussion of the facts relating to Count Two. Deceptive Billing Practices In or around August 2009, three individuals——S.J., J.J. (S.J's cousin), and L.J. (S.J's mother)——were involved in an automobile accident. Thereafter, in late 2009 and early 2010, S.J., J.J., and L.J. presented themselves on a number of occasions for chiropractic services at Dr. Wagner's office in Daytona Beach. Roughly one year earlier, patient C.H. was likewise involved in a car accident. C.H. was subsequently referred to Dr. Wagner for chiropractic treatment by her personal injury attorney, Joshua Wagner, who happens to be the son of Dr. Joseph Wagner. It appears from the record that C.H. was treated at Dr. Wagner's clinic on multiple dates. Pursuant to the parties' Joint Prehearing Stipulation, it is undisputed that S.J., J.J., L.J., and C.H. each had personal injury protection (PIP) insurance from Direct General Insurance Company ("DGIC"). PIP insurance coverage allows a medical or chiropractic provider to treat insured persons and then submit a reimbursement claim to the insurance company for the service(s) provided. Beginning with the claims associated with C.H., Respondent has consistently maintained that C.H. was not a joint-venture client, that he had no knowledge of C.H., and that any claim submitted by Dr. Wagner in connection with C.H. was without his knowledge or authorization. The undersigned credits this portion of Respondent's testimony; thus, any bills that relate to C.H. cannot sustain a finding of a deceptive or fraudulent practice. However, the cases of S.J., J.J., and L.J. are another matter. Based upon Respondent's deposition testimony, the undersigned is persuaded that Dr. Wagner, with Respondent's knowledge and authorization, submitted reimbursement claims to DGIC in connection with S.J., J.J., and L.J. that bear the following dates: January 30, 2010 (S.J.); January 30, 2010, and March 13 and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.).3/ While the exact services billed to DGIC varied by JVC and date, the content of each of these claim forms represented unambiguously that the examinations and/or treatments——e.g., a trigger point injection for L.J. on March 27, 2010——were performed by Respondent and no other. This was unquestionably deceptive in light of Respondent's consistent testimony that he never physically conducted medical examinations or treatments in connection with any joint-venture client. Alleged Overbilling In contrast to Count Two, the charges that relate to overbilling (Counts One and Three) cannot be sustained merely by proof that claims for reimbursement——i.e., the claims identified in paragraph 16 above, which Respondent authorized——were submitted for services that Respondent did not perform. Rather, it is incumbent upon Petitioner to demonstrate that the services billed were not performed at all. In this regard, the deposition transcripts of L.J. and S.J., which consist entirely of hearsay, are the only evidence that the billed services were not performed by anyone. While the deposition testimony of L.J. and S.J. is credible, there is a complete absence of non-hearsay evidence as to what procedures or services were never provided to these specific patients during their office visits. All that was proven——based upon Respondent's admissions and supplemented by the hearsay testimony of the JVCs——is that Respondent did not perform the billed services, which, as explained in greater detail in the Conclusions of Law of this Recommended Order, is insufficient to satisfy Petitioner's burden. Ultimate Findings of Fact It is determined, as a matter of ultimate fact, that Respondent engaged in deceptive, untrue, or fraudulent representations in or related to the practice of his profession. It is further determined, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent submitted to a third-party payor a claim for a service or treatment that was not actually provided to a patient. Finally, as a matter of ultimate fact, it is determined that that Petitioner failed to prove that Respondent, in connection with a personal injury protection claim, intentionally submitted a bill or claim for reimbursement for services that were not rendered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Dismissing Counts One and Three of the Corrected Amended Administrative Complaint; Finding that Respondent violated section 456.072(1)(m), Florida Statutes, as charged in Count Two; Suspending Respondent's license to practice chiropractic medicine for a period of one year; Placing Respondent on probation for a period of two years, with conditions deemed appropriate by the Board; and Imposing a fine of $10,000. DONE AND ENTERED this 16th day of March, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2012.
