The Issue The issues in this case are whether Respondent violated sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and 460.413(1)(r), Florida Statutes (2006),1/ and Florida Administrative Code Rule 64B2-17.0065, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. Dr. Christian was at all times material to the violations alleged in the Administrative Complaint a licensed chiropractic physician in the State of Florida, having been issued license number 5756 on or about February 4, 1998. At all times material to the violations alleged in the Administrative Complaint, Dr. Christian, Dr. Davidson, and Dr. Kalin were employees of Comprehensive Physician Services, Incorporated (CPS). Dr. Christian was the sole stockholder of CPS. On April 17, 2006, M.M. was involved in an automobile accident when the car, in which she was a front-seat passenger, hit a tree on the passenger side. The window next to M.M. shattered and M.M. received lacerations to the right temple area of her head. M.M. was transferred by ambulance to the emergency room at Northside Hospital. While in the emergency room, a CT scan was performed on M.M.'s head. The CT evaluation was normal. The lacerations were sutured, and M.M. was discharged from the emergency room. On or about April 26, 2006, M.M. presented to CPS for treatment of injuries due to the automobile accident on April 17, 2006. M.M., who was a minor at the time, was accompanied by her mother to CPS. M.M.'s complaints were headaches; neck pain and stiffness; mid-back pain and stiffness; lower back pain and stiffness; difficulty sleeping due to pain; and difficulty with concentration. She indicated that, on a scale of one to ten, with ten being the most, the stiffness in her neck and middle back was a five. On examination, Dr. Christian found that M.M. had cervical and thoracic tenderness. In his initial report, Dr. Christian noted the hyperabduction tests were positive, and there was "left side reduced pulse/paresthesia due thoracic outlet compression consistent with compression from seat belt trauma." However, the test results contained in the medical records show that there are negative findings on the hyperabduction tests. When questioned about the discrepancy, Dr. Christian testified that the positive findings were a result of the grip/pinch test that he performed. He indicated that he made a mistake in his initial report and that the report should have stated right side reduced pulse. He could not explain how the grip/pinch test would lead him to conclude that there was a reduced pulse because M.M.'s pulse would not be measured during a grip/pinch test nor could he explain how he could learn from a grip/pinch test that there was paresthesia. Later, he testified that the difference in the results was not due to the grip/pinch test, but was a result of a second hyperabduction test that he performed prior to the grip/pinch test. Dr. Christian's testimony is not credited. Dr. Christian's practice is to have an assistant come into the examination room during the testing. As he performs the test, he tells the assistant the results of the test, and the assistant will record the test results. The medical records do not show a second hyperabduction test being recorded by an assistant. Therefore, the examination results are contrary to the results stated in the initial report for April 26, 2006. In his examination records of April 26, 2006, Dr. Christian noted that there was "R [circled] Visual Acuity Diff." M.M.'s mother was present during the examination and observed Dr. Christian testing M.M.'s vision on April 26, 2006. Dr. Christian testified that he first tested M.M.'s vision on May 24, 2011. His testimony is not credited. Dr. Christian's practice is to put findings of the previous chiropractic examination on the report of the examination that he is currently conducting so that a comparison could be made. The examination report of April 26, 2006, and May 24, 2006, are the same with the exception of notations on the May 24, 2006, report of 5/23 near the present complaints section and the section where areas of muscle spasms on the spine are noted. In his follow-up report dated May 24, 2006, Dr. Christian wrote: "Certainly today I see evidence of her continuing to have some alterations of visual acuity . . .". Dr. Christian testified that he had incorrectly included the term "continuing" in this statement. Dr. Christian's testimony is not credited. His statement that the alterations of visual acuity were continuing comports with M.M.'s mother's testimony that the first visual testing was done on April 26, 2006, and the examination report of April 26, 2006. Based on the examination reports for April 26, 2006, and May 24, 2006, there is no indication of what tests Dr. Christian used to test M.M.'s vision nor is there any indication of the exact nature of the problem with the right eye. Dr. Christian's initial report does not mention the visual acuity difference. His follow-up report of May 24, 2006, does not indicate the difference that M.M. is experiencing with her right eye. In his examination records of June 14, 2006, and July 25, 2006, Dr. Christian notes: " R [circled] side vision distance diff." In his final report of July 25, 2006, Dr. Christian noted as a current symptom, "[r]ight sided visual alteration with peripheral." He listed as a diagnostic impression: "Concussion with residual affecting peripheral visual field on the right, persistent." However, contrary to his final report, Dr. Christian testified at final hearing that M.M.'s problem with her peripheral vision had improved. On April 26, 2006, Dr. Christian's treatment plan included the following treatment for M.M. three times a week for four weeks: intersegmental traction, hot pack, and neuromuscular release for the full spine; inferential, alternating cervical to dorsal and dorsal to lumbar; full spine massage; and full spine aqua treatment. The therapist assistant was to determine which treatment modalities and areas to treat at each treatment session. Dr. Christian signed each of the daily treatment notes. On April 26, 2006, Dr. Christian referred M.M. to Dr. Kalin. According to Dr. Christian, Dr. Kalin had experience in emergency rooms treating patients who had sustained trauma. Dr. Christian wanted Dr. Kalin to look at the two lacerations that M.M. had sustained. However, there were no outward signs of infection of the lacerations, and the lacerations had healed. Dr. Christian also wanted to determine if there was any post concussion symptoms. Dr. Kalin evaluated M.M. on May 1, 2006. His initial diagnosis was that she had a "cervical musculoskeletal ligamentous strain" and a "[s]ubacute lumbosacral musculoskeletal ligamentous strain." His examination did not reveal any abnormality with M.M.'s vision. He did find that the lacerations may leave permanent scarring. In his interim report dated May 24, 2006, Dr. Christian stated: "Dr. Kalin was not able to mention the fact that she [M.M.] struck her head or had laceration and dizziness with nausea and vomiting following the impact." This statement is contrary to what Dr. Kalin stated in his report. Dr. Christian further noted in his report that he would follow- up with Dr. Kalin to see if Dr. Kalin had an addendum as to whether there is additional follow-up for post-concussion symptomology. In his report of May 1, 2006, Dr. Kalin did not make any findings of a concussion or post-concussion syndrome. On May 25, 2006, a staff member of CPS sent the following request to Dr. Kalin: Dr. Kalin, Dr. Christian asked if you could please make an addendum [sic] to your report on [M.M.] for her concussion-post concussion syndrome. Thanks! Kimberly Dr. Kalin replied: "pt had no symptoms of headache or memory/concentration when I saw her." No mention was made in Dr. Christian's interim report dated May 25, 2006, that Dr. Kalin did not find any evidence of post-concussion syndrome. On May 1, 2006, Dr. Christian wrote a prescription for hydrotherapy for M.M. for three times a week for four weeks. M.M. received treatment at CPS on May 1, 2006. M.M. indicated to the therapist that on a scale of one to ten that she rated her low back pain and low back stiffness as a four and her neck stiffness as a five. The therapist noted that there was cervical and lumbar tenderness. M.M.'s treatment on May 1, 2006, consisted of hot therapy and hydrotherapy to the cervical, thoracic, lumbar, and sacral areas, and intersegmental traction to the cervical, thoracic, and lumbar areas. X-rays of M.M.'s cervical and lumbar spine were ordered. The radiologist who read the X-rays had the impression that M.M. had a cervical muscle spasm and a lumbar muscle spasm. On May 4, 2006, M.M. received treatment at CPS. She rated her neck stiffness and low back stiffness as a three. There was no notation of any tenderness by the therapist. M.M. received the following treatment in the thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, and hydrotherapy. On May 4, 2006, ultrasound studies were performed on M.M. by Charles W. Hirt, M.D. (Dr. Hirt). Dr. Hirt's impression was that there were findings that showed evidence of a left- sided thoracic outlet syndrome. On May 9, 2006, M.M. returned to CPS for treatment. She rated her neck stiffness and lower back stiffness as a two. The therapist noted that there was tenderness in the cervical and lumbar areas. M.M. was given hot therapy, intersegmental traction, and trigger point therapy in her cervical, thoracic, and lumbar areas. She received myofascial release, massage, and hydrotherapy in her cervical, thoracic, lumbar, and sacral areas. On May 16, 2006, M.M. was treated at CPS. She rated her neck stiffness as a one and her low back stiffness as a two. The therapist noted tenderness in the lumbar area. The treatment to M.M.'s cervical, thoracic, lumbar, and sacral areas included intersegmental traction, trigger point therapy, myofascial release, and massage. She was given interferential treatment to her lumbar and sacral areas and hot therapy to her cervical, thoracic, and lumbar areas. On May 18, 2006, M.M. presented for treatment at CPS. She rated her neck and low back stiffness as a one. The therapist did not note any tenderness. M.M. received the following treatment in her cervical, thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, trigger point therapy, myofascial release, and massage. On May 23, 2006, M.M. went to CPS for treatment. She rated her lower back stiffness as zero. The therapist noted tenderness in the cervical, thoracic, and lumbar areas. M.M. was given a massage and myofascial release in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment and trigger point therapy in her lumbar and sacral areas and hot therapy and intersegmental traction in her thoracic, lumbar, and sacral areas. On May 24, 2006, Dr. Christian did a follow-up examination of M.M. M.M. rated the neck and lower back stiffness as zero. Dr. Christian noted in his follow-up report that all the symptoms that he had noted in his initial report of April 26, 2006, had improved. His follow-up report stated: "Cerebellar function tests, as far as assessed are abnormal with a positive Rhomberg test for possible concussion." His follow- up report also stated: "Certainly today, I see evidence of her continuing to have some alterations of visual acuity and a positive Rhomberg, which would be consistent with post concussion syndrome." On May 25, 2006, M.M. returned to CPS for further treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical and lumbar areas. M.M. was treated with myofascial release and massage in her cervical, thoracic, lumbar, and sacral areas. She received trigger point therapy in her lumbar and sacral areas and inferential treatment in her thoracic area. She also received intersegmental traction in her thoracic, lumbar, and sacral areas. M.M. received treatment at CPS on May 30, 2006. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. Hydrotherapy, hot therapy, and intersegmental traction were provided to M.M. in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment in her lumbar and sacral areas. On June 13, 2006, M.M. again returned to CPS for treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical, thoracic, and lumbar areas. M.M. received intersegmental traction, myofascial release, and massage in her cervical, thoracic, lumbar, and sacral areas. M.M. was given hot therapy in her thoracic, lumbar, and sacral areas. She received trigger point therapy in her cervical and thoracic areas. On June 14, 2006, M.M. presented at CPS for a follow- up visit with Dr. Christian. She rated her neck and low back stiffness as zero. He reduced her treatment to one per week for the next four to five weeks. In his examination record of June 14, 2006, Dr. Christian noted: " R [circled] side vision distance diff." On June 20, 2006, M.M. returned to CPS for treatment. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. M.M. was given hot therapy and intersegmental traction for her thoracic, lumbar, and sacral areas. She was given hydrotherapy for her cervical, thoracic, lumbar, and sacral areas. On June 22, 2006, ultrasound studies were done on M.M. by Dr. Hirt. His impression was that she likely had thoracic outlet syndrome on the left side. On May 24, 2006, Dr. Christian referred M.M. to Dr. Davidson for a second opinion for post concussion. Dr. Davidson examined M.M. on June 27, 2006. In his report dated June 27, 2006, Dr. Davidson concluded that she had had a mild concussion, a cervical strain, and a lumbosacral strain. He recommended that her soft tissue therapy be discontinued. Dr. Davidson did not find any abnormalities in M.M.'s vision. On July 25, 2006, M.M. was examined by Dr. Christian. M.M. rated her neck and low back stiffness as zero. Dr. Christian noted the following in his final report dated July 25, 2006. If the patient's symptoms of altered visual field persist and evaluation by an ophthalmologist or a neuro-ophthalmologist may be appropriate. If she begins to have any difficulty with sleep, mood swings, feelings of dizziness or persistent headaches a neuro-psychiatric evaluation for continued post concussion deficits may be appropriate. Dr. Christian discharged M.M. on July 25, 2006, and M.M. was to return for treatment on an as needed basis. Dr. Christian's initial report dated April 26, 2006; interim report dated May 24, 2006; follow-up report dated June 14, 2006; and final report dated July 25, 2006, were dictated by Dr. Christian. The reports were being mailed to someone or some entity based on the note at the end of each report, which stated: "DICTATED BUT NOT PROOFREAD TO AVOID DELAY IN MAILING." At the closing of each report, Dr. Christian stated: "If I can be of further assistance in this regard, please do not hesitate to contact me." It is not clear to whom the reports were directed, but it is clear that the reports were meant to convey the examination, evaluation, and treatment of M.M. to the reader of the report. These reports did not accurately report the examination results of M.M. in at least two instances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065; finding that Dr. Christian did not violate sections 460.413(1)(n) and 460.413(1)(r); imposing an administrative fine of $2,500; placing Dr. Christian on probation for one year; and requiring Dr. Christian to attend a continuing education course on record-keeping. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 15th day of November, 2011.
Findings Of Fact Respondent, Richard Powers, was at all times material hereto a licensed chiropractor in the State of Florida, having been issued license number CH0003372. Respondent has routinely advertised his chiropractic practice in the Palm Beach Post. On July 8, 1984, July 15, 1984, and September 2, 1984, Respondent ran an advertisement in the Palm Beach Post which offered a free examination and which stated that the "usual value of this exam is $80. This includes X-rays if needed." The advertisement did not include the disclaimer mandated by Section 455.24, Florida Statutes. That statute, effective June 12, 1984, required that: In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider ... (such as Respondent) ... the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. By memorandum dated September 30, 1984, the Department of Professional Regulation, Board of Chiropractic (Board), advised all licensees of the aforesaid amendment to section 455.24. Respondent asserts he had no knowledge of the amendment until his receipt of the Board's memorandum in October, 1984, and that he complied, or attempted to comply, with the amendment at all times thereafter. The evidence supports Respondent's assertions. The advertisements of July 8, 1984, and July 15, 1984, were captioned in bold type "ADVANCED APPLIED CHIROPRACTIC," listed Respondent as a diplomate of the National Board of Chiropractic, and concluded in bold type "A STANDARD OF EXCELLENCE." The advertisement of September 2, 1984, touted Respondent's clinic as "Advanced Applied Chiropractic and Comprehensive Pain Center." The generally accepted definition within the medical community of diplomate is an individual who has completed an extensive post graduate program and successfully passed the board's examination. This establishes superior qualifications in the individual's field of practice. Although the National Board of Chiropractic issues diplomate certification to those individuals who pass its examination, its examination is a basic licensing examination which establishes minimal competency, not excellence. Respondent's use of the phrase "Advanced Applied Chiropractic" to describe his clinic implies that he possesses skills superior to the average chiropractor. Respondent has registered the phrase "Advanced Applied Chiropractic" as a fictitious name. Respondent was, on one prior occasion, disciplined by the Board for an advertising violation.
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
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.
The Issue Whether Petitioner is entitled to additional credit for the answer he gave in response to Question 21 on the physical diagnosis portion of the November 1999 chiropractic licensure examination.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1999. The practical examination consisted of three parts: "technique," "physical diagnosis," and "x-ray interpretation." The minimum passing score for each part was 75. Petitioner passed the "technique" and "x-ray interpretation" portions of the examination; however, he failed the "physical diagnosis" portion of the examination (PD Test), with a score of 68. On this portion of the examination, candidates demonstrated their knowledge of "physical diagnosis" by responding to test questions, in the presence of two examiners, verbally and/or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the two examiners' scores. Prior to the administration of the PD Test, all examiners were provided with instructions regarding their role in the examination process and the standards they should follow in grading the candidates' performance. Candidates were provided with a Candidate Information Booklet (CIB) in advance of the licensure examination. Among other things, the CIB listed, by category ("acupuncture," "physical diagnosis," "technique," and "x-ray") reference materials that could "be used to prepare for the examination." The list was preceded by the following advisement: The list is not to be considered all- inclusive. Thus, other comparable texts may be used to prepare for the examination. Under the category of "x-ray" the following "references" were listed: Eisenburg, Gastrointestinal Radiology- A Pattern Approach, Hagerstown, MD: Lippencott, Second Edition, 1989. Paul & Juhl, Essentials of Radiologic Imaging, Hagerstown, MD, Lippencott, Sixth edition, 1993. Taveras & Ferrucci, Radiology: Diagnosis- Imaging-Intervention, Hagerstown, MD: Lippencott, 1986. Five-volume set, loose- leaf renewed in July 1994. Yocum, T. R., & Rowe, L. J., Essentials of Skeletal Radiology, Baltimore: Williams & Wilkins, First Edition 1986. Not on the list under "x-ray" or under any other category was Dr. Robert Percuoco's Radiographic Positioning for the Chiropractor (Dr. Percuoco's Publication), the text book used by Dr. Percuoco in the radiology classes he teaches at the Palmer College of Chiropractic in Davenport, Iowa (Palmer). Palmer was the nation's first college of chiropractic, and is accredited by the Council of Chiropractic Education. Petitioner graduated from Palmer and was taught radiology by Dr. Percuoco. Question 21 on the PD Test was an eight-point "diagnostic imaging" question (with no provision for partial credit) that asked the candidates to "demonstrate a Lateral Thoracic view." Among the six items the candidates had to address in answering the question was the central ray. Page 54 of the Dr. Percuoco's Publication describes what, according to the author, needs to be done to obtain a view of the lateral thoracic spine. It provides, in pertinent part, as follows (Dr. Percuoco's Approach): Center the central ray to the film. The vertical portion of the central ray should pass posterior to the head of the humeri. In responding to Question 21 on the PD Test, Petitioner relied on the foregoing excerpt from Dr. Percuoco's Publication. He told the examiners that the central ray should be centered to the film and that the vertical portion of the central ray should pass one inch posterior to the head of the humerus. The two examiners evaluating his performance both gave Petitioner an "A" (or no points) for his response to Question 21. In so doing, they acted reasonably and in accordance with the grading instructions they had received prior to the administration of the PD Test. Dr. Percuoco's Approach (upon which Petitioner relied) is not generally accepted in the chiropractic community. A reasonably prudent chiropractor, in taking an x-ray of the lateral thoracic spine, would do what was necessary to have the central ray pass, not "posterior to the head of the humeri," but "approximately 3 inches inferior to [the] sternal angle," as Drs. Yocum and Rowe, two of the most respected radiologists in the country today, instruct in their text, Essentials of Skeletal Radiology, which was one of the reference materials listed in the CIB (Dr. Yocum's and Dr. Rowe's Approach). Dr. Yocum's and Dr. Rowe's Approach yields a more exact and complete view of the lateral thoracic spine than does Dr. Percuoco's Approach. Because Petitioner failed to incorporate Dr. Yocum's and Dr. Rowe's Approach in his response to Question 21, the examiners were justified in determining that Petitioner did not answer all six parts of the question correctly and that he therefore should be awarded an "A" (or no points) for his response.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the physical diagnosis portion of the November 1999 chiropractic licensure examination. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2000.
