The Issue The issue in this case is whether Florida Administrative Code Rule Subsections 64B2-15.001(2)(e), (i), and (l) constitute an invalid exercise of delegated legislative authority in that they exceed Respondent's rulemaking authority or enlarge, modify, or contravene the law the Rule implements.
Findings Of Fact Petitioner Michael John Badanek, D.C., is a duly licensed chiropractic physician in the State of Florida. Dr. Badanek actively practices in Ocala, Florida. Dr. Badanek has engaged in and is engaging in, the advertising of professional services to the public. Dr. Badanek is subject to the provisions of Chapter 460, Florida Statutes, and the rules promulgated by Respondent. Dr. Badanek's failure to adhere to the provisions of Chapter 460, Florida Statutes, and the rules promulgated thereunder, including the Challenged Rule Subsections, may result in the discipline of his professional license. Dr. Badanek has standing to challenge the Challenged Rule Subsections. The affected state agency is the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), located at 4052 Bald Cypress Way, Tallahassee, Florida. The Board is charged by Chapter 460, Florida Statutes, with the duty of regulating the chiropractic profession in Florida. In carrying out that duty, the Board has adopted Florida Administrative Code Rule Chapter 64B2. At issue in this matter is the Challenged Rule Subsections of Florida Administrative Code Rule 64B2-15.001. The Challenged Rule Subsections provide the following: 64B2-15.001 Deceptive and MisleadingAdvertising Prohibited; Policy; Definition. . . . . (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it: . . . . (e) Coveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, posses qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialties recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each specialty requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that "The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine." A chiropractor may use on letterhead or in advertising a reference to any honorary title or degree only if the letterhead or advertising also contains in the same print size or volume the statement "Honorary" or (Hon.) next to the title. . . . . (i) Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board, or . . . . (l) Contains a reference to any other degree or uses the initials "M.D." or "D.O." or any other initials unless the chiropractic physician has actually received such a degree and is a licensed holder of such degree in the State of Florida. If the chiropractic physician licensee is not licensed to practice in any other health care profession in Florida, the chiropractic physician must disclose this fact, and the letterhead, business card, or other advertisement shall also include next to the reference or initials a statement such as "Not licensed as a medical doctor in the State of Florida" or "Licensed to practice chiropractic medicine only" in the same print size or volume. . . . . The authority cited by the Board as its "grant of rulemaking authority" for the Challenged Rule Subsections is Section 460.405, Florida Statutes, which provides: Authority to make rules.--The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. The Board has cited Sections 456.062 and 460.413(1)(d), Florida Statutes, as the "law implemented" by the Challenged Rule Subsections. Section 456.062, Florida Statutes, provides: Advertisement by a health care practitioner of free or discounted services; required statement.--In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, 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 THAT 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. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place. Section 460.413(1)(d), Florida Statutes, provides the following ground for disciplinary action: "False, deceptive, or misleading advertising." While neither this provision nor any other specific provision of Chapter 460, Florida Statutes, imposes a specific duty upon the Board to define what constitutes "false, deceptive, or misleading advertising," the Board is necessarily charged with the duty to apply such a definition in order to carry out its responsibility to discipline licensed chiropractors for employing "false, deceptive, or misleading advertising."
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of chiropractic medicine, in violation of section 460.412, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of chiropractic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this proceeding, Dr. Rodriguez was a licensed chiropractor in the State of Florida, having been issued license number CH 9812 on September 17, 2009. Dr. Rodriguez's address of record with the Department is 1840 Northwest 122nd Terrace, Pembroke Pines, Florida 33026. Patient D.H. was a 22-year-old patient of Dr. Rodriguez. She had been referred to Dr. Rodriguez by her mother, also a patient. Patient D.H. was the one who suggested initial treatment with Dr. Rodriguez. She had seen him about six times over a period of two months. On or about June 6, 2012, Patient D.H. presented to Dr. Rodriguez for chiropractic treatment. Dr. Rodriguez began treating Patient D.H. in one of the treatment rooms in his practice. As she was turning over on the examination table, Patient D.H.'s left breast was exposed. Dr. Rodriguez commented on her breast being exposed. Patient D.H. replaced her breast under her tank top. As Dr. Rodriguez continued with his treatment, her breast was again exposed, prompting Dr. Rodriguez to say that Patient D.H. was getting him excited, or words to that effect. Dr. Rodriguez touched both of her breasts with his hands. He then kissed her breasts. Patient D.H. testified that she was in shock because his actions were sudden and caught her off guard. Dr. Rodriguez left the room. Dr. Rodriguez's staff placed Patient D.H. in a massage chair in a common area of the office. After Patient D.H. stated that she still had pain, she was taken into another room for an additional treatment on her shoulder. In the new room, Patient D.H. lay down on the treatment table. After placing some patches on her shoulder, Dr. Rodriguez again touched her breasts. He placed his hand inside her pants and inserted two fingers into her vagina. She testified that she told him to stop. Dr. Rodriguez again told her how she excited him. Patient D.H. later testified that she was in shock and unable to react. Dr. Rodriguez and Patient D.H. made a "pinky promise" not to say anything, and then Dr. Rodriguez washed and dried his hands. He placed a Chinese herbal remedy above her left breast, told her to sleep, and left the room. When he returned, Patient D.H. began crying. Dr. Rodriguez gave her a hug and kissed her on the cheek. While Patient D.H. was in a treatment room with Dr. Rodriguez, he engaged in sexual contact with her which was outside the scope of her medical treatment. Other than as described, Patient D.H. made no complaint to Dr. Rodriguez, nor did she complain to an office staff member. Patient D.H. left Dr. Rodriguez's office and started driving to her cousin's house. She then pulled over and called the police and her mother to tell what had happened. Patient D.H.'s mother testified that she received a phone call from her daughter about 5:00 p.m., saying that Dr. Rodriguez had molested her, and immediately went to meet her. Patient D.H.'s parents took her to the Cooper City district office of the BCSO to report the crime. On June 11, 2012, in conjunction with a criminal investigation by the BCSO, Patient D.H. made a controlled telephone call to Dr. Rodriguez while in the presence of a detective. During the conversation, Dr. Rodriguez said that he did not want to discuss things on the telephone because he could not be sure he was not being recorded, and asked Patient D.H. to come see him at the office. Patient D.H. said she would be uncomfortable seeing him and that is why she had called on the telephone. Their conversation included words to the following effect: Patient D.H.: Do you . . . do you really do this to your other patients? Dr. R.: I don't. That's why I'm . . . I couldn't sleep this weekend. I . . . I . . . I'm exhausted. I'm physically and mentally exhausted. Patient D.H.: But why me? Dr. R.: I don't know. It just happened, hon. That's what I'm telling you, it just, it just happened. Patient D.H.: I just want to know why me? Dr. R.: I don't . . . I don't know . . . I, I just don't know. Um . . . you know, and I wasn't sure because you know, um . . . you know you, you um, when you came about, you showed me your breasts, um . . . . Patient D.H.: It wasn't . . . you know, it was an accident, I wasn't trying to personally . . . . Dr. R.: No, but you know, but when you did the other part, you know, then I thought that that was um. Patient D.H.: What other part are you talking about? Dr. R.: No dear, no, your breasts, and that was an invitation . . . or an open, you know, "here" and for some reason we were talking about stuff, it's a blank to me. I do not remember . . . if you asked me . . . it was just, I do not remember, um, how exactly everything happened, but it just happened. Patient D.H.: Don't you remember . . . don't you remember putting your hand on my breasts and putting your two fingers in my vagina? Do you remember that? Dr. R.: Yes. Patient D.H.: Yes, you do remember that, right? Dr. R.: Hon, I don't even want to, I don't even want to go there. I don't even want to be going there, because I didn't feel comfortable with that at all. Patient D.H.: How, how do you think I feel? I'm not comfortable at all myself. Dr. Rodriguez later engaged the services of a forensic audio engineer who generated an enhanced audio version of the above-described controlled telephone call. During this call, Detective Wernath's voice can be heard in the background, coaching Patient D.H. through portions of the conversation. The criminal investigation also found that a DNA sample from a buccal swab taken from Dr. Rodriguez matched DNA collected from Patient D.H.'s breast. As Mr. Rhodes testified, the chance of a false positive was less than one in 30 billion. Dr. Rodriguez has admitted the sexual activity, while maintaining that his conduct was invited by Patient D.H.'s actions. Specifically, Dr. Rodriguez testified that he believed that Patient D.H. intentionally made her breast "slip out" of her tank top several times, that it was not an accident. He testified that when he told her that he could see her exposed breast, she responded, "Oh, I don't mind." He testified that Patient D.H. was being flirtatious and, by her provocative actions, was encouraging his behavior. Dr. Rodriguez's testimony that he believed Patient D.H. encouraged his sexual misconduct is supported by his statements directly to Patient D.H. on the recorded call, when he thought no one else was listening, and is credible. But regardless of what Dr. Rodriguez may have perceived, or the degree, if any, to which Patient D.H. was complicit in Dr. Rodriguez's sexual misconduct, her involvement would not excuse his actions. A chiropractor is not free to engage in sexual activity with his patient even if the patient encourages or consents to it. There was scant evidence in the record to suggest that Dr. Rodriguez accepts or understands this professional responsibility. Patient D.H.'s testimony as to Dr. Rodriguez's actions was clear and convincing. Her testimony as to his actions is credited and is confirmed by his own statements in the controlled telephone call and at hearing. Respondent's touching of Patient D.H.'s breasts with his hand and mouth and insertion of his fingers into her vagina constituted engaging in sexual activity with a patient and was sexual misconduct in the practice of chiropractic medicine. Patient D.H. engaged in a civil lawsuit against Dr. Rodriguez. She has since executed a release in that case. Dr. Rodriguez has not previously been subject to disciplinary action by the Board. Dr. Rodriguez credibly testified that he has installed video cameras in the treatment rooms to ensure that there will be no further incidents. He noted that the purpose of these cameras was to protect him. Dr. Rodriguez demonstrated little or no remorse, the focus of his spirited testimony being directed towards the provocative conduct of Patient D.H., not his own inappropriate actions. Revocation or suspension of Dr. Rodriguez's professional license would have a great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Chiropractic Medicine, enter a final order finding Dr. Enrique Rodriguez in violation of section 460.412, Florida Statutes; revoking his license to practice chiropractic medicine; and imposing costs of investigation and prosecution. DONE AND ENTERED this 29th day of March, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2019.
The Issue The issue in this case is whether Respondent is guilty of violating Section 460.413(1)(n), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of one patient.
Findings Of Fact Respondent is a chiropractor licensed to practice in the State of Florida pursuant to license number CH 0003164. D. B. first visited Respondent on July 10, 1987. She was 36 years old and complained of depression, headaches, numbness, allergies, dizziness, low back pain, neck pain or stiffness, pain between the shoulders, pain or numbness in the shoulders and hands, pain over the heart, itching, frequent urination, earache. The inception of the back and neck pain and headaches, as well as nausea, dated back to an accident almost two years earlier, which followed another accident about a year earlier. Driving, exercise, and stress aggravated these conditions, which interfered with work, sleep, and daily routines. D. B., who was taking pain, muscle-relaxant, and anti-depressant medication, reported that she had not felt really good for almost two years. During the first visit, Respondent performed a neurological examination. He recorded his findings on D. B.'s chart. He also took x-rays and maintained the exposures among the patient's records. Respondent's diagnosis was that D. B. suffered from subluxation complexes. Respondent practices subluxation-based chiropractic, which is a well- recognized school within the profession. The primary purpose of the practice is to use chiropractic adjustment techniques to reduce the subluxation complex, which may consist of two or more misaligned vertebrae in the spine. The theory of subluxation practitioners is that the misalignment produces pressure on the spinal cord, which results in symptoms elsewhere in the body. As the treatment proceeds, the subluxation practitioner monitors the reduction of the complex and any attendant symptoms. However, his primary concern is achieving a biomechanical change in the spinal structure and not symptomatic complaints of the patient. For example, D. B. showed the symptom of a pelvic deficiency. A pelvic deficiency may manifest itself in a leg that, during clinical examination, is shortened or spongy. Using the Activator, Pierce, and Pierce-Stillwagon techniques, Respondent treated D. B. nine times during July, after the initial visit, then about four times per month through November, 1987, and about eight times thereafter with the final treatment taking place in October, 1988. Using abbreviations well-recognized among other subluxation practitioners, Respondent recorded the salient details of each office visit during the entire course of treatment. He noted the numeric value for the pelvic deficiency, as measured during each office visit. He recorded the nature and location of the adjustments that he performed upon D. B. during each visit. The chiropractic records justified the treatment that Respondent administered to D. B., whose symptoms alleviated under his care.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Chiropractic enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED 14th day of December, 1989, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1502 Treatment Accorded Proposed Findings of Petitioner 1-2: adopted. 3: rejected as unsupported by the greater weight of the evidence. 4-5: rejected as subordinate. 6-7: rejected as unsupported by the greater weight of the evidence. 8: adopted in substance. and 11-16: rejected as subordinate. and 17-18: rejected as unsupported by the greater weight of the evidence. 19-21: rejected as recitation of testimony. Treatent Accorded Proposed Findings of Respondent 1 and 4-7: rejected as not finding of fact. 2-3: adopted. 8-9: rejected as subordinate. 10-15: adopted. 16-18: rejected as subordinate. 19-21: adopted in substance. 22-37: rejected as not finding of fact, recitation or testimony, and subordinate. COPIES FURNISHED: Patricia Guilford Executive Director Board of Chiropractic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cynthia Gelmine, Staff Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack R. Elliott Arfken & Elliott 100 Rialto Place, Suite 801 Melbourne, Florida 32901 =================================================================
The Issue The issue presented is whether or not Petitioner passed the 1987 chiropractic examination.
Findings Of Fact Petitioner, Mary Campilii, was a candidate for the May 14-17, 1987 chiropractic examination. Petitioner achieved an overall score of 72, as reflected by an upward revision to her original score of 66, on the practical section of the examination. Petitioner achieved a score of 76 on the Florida laws and rules section of the examination. A minimum score of 75 is required to pass both the practical and laws and rules sections of the examination. Petitioner has challenged the method of grading utilized by the Respondent contending that it is subjective as it elates to her, and did not properly reflect her level of achievement and knowledge to the questions that she answered on the May 1987 examination. Petitioner failed to demonstrate that she demonstrated expert or superior knowledge in her answers to any of the questions on the May 1987 exam that she now challenges. The oral practice examination for chiropractic certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for license certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3, which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimum competency and a score of 4 is given when a candidate demonstrates superior or expert knowledge in the subject area tested. Petitioner presented Thomas P. Toja, an expert in grading chiropractic examinations for the Board, who offered his opinion that had the grading system utilized by Respondent been different, i.e. a system whereby a candidate could be accorded a score somewhere between a 3 and 4, when such candidate has demonstrated more than minimum competency but less than superior or expert knowledge in the subject area tested, a candidate, such as Petitioner, could have achieved an additional 3 points to her score of 72, and thereby received a passing score of 75. Petitioner has not, however challenged validity of the existing rule which permits Respondent to utilize the grading procedures applied in this case. Stephen Ordet, a licensed chiropractor in Florida for more than 7 years was received as an expert in the grading of chiropractic examinations in Florida, and was one of the graders during the May 1987 examination. Ordet's opinion, which is credited, was that Petitioner did not earn a score of 4 on any of the questions that she now challenges, and was correctly assigned a score of 3 for each of the responses she gave to questions she challenged. Thomas P. Hide, a chiropractor who specializes in the area of sports related injuries, was tendered and received as an expert in the area of reviewing x-rays and the grading of the chiropractic examination. Hide credibly testified and it is found that Petitioner was properly assigned a score of 3 on questions 8, 12, 20, 22, 28, 29, 30 and 33.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that she met the minimum criteria to pass the challenged chiropractic examination and deny her request for licensure. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Mary Camiplii 2921 Buckridge Trail Loxahatchee, Florida 33470 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner is entitled to credit for her response to Question 36 or for her response to Question 41 of the X-ray interpretation portion of the Chiropractic Licensure Examination administered in November 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a Final Order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the X-ray portion. The X-ray portion consists of 60 multiple-choice questions, with each question having four possible answers. A chiropractic or pathology film is displayed for each question. The candidates are instructed to select from four possible answers the best answer to the written question pertaining to the accompanying film. The candidates are given 90 seconds to answer each question. The X-ray portion of the examination tests minimal competency and does not provide the candidates a certification or specialty in the field of radiology. Petitioner received a failing score on the X-ray portion of the examination. A candidate must correctly answer 45 of the 60 scores to pass. Petitioner received credit for correctly answering 44 questions. If Petitioner is awarded credit for correctly answering Question 36 or Question 41, she will be entitled to a passing score on the X-ray portion of the examination as well as the over-all examination. The written portion of Question 36 described certain symptoms being experienced by a 60-year-old female. The X-ray depicted a patient whose trachea was deviated to the left of its usual position. Candidates were asked to select the answer that best responded to the question "what is your impression of the radiograph." The parties agree that two of the four answers were incorrect. The other two answers will be referred to as Answer A and Answer B. Answer A, the answer Respondent considered the correct answer, was that the radiograph showed the trachea was deviated to the left of its usual position. Answer B, the answer selected by Petitioner, is a possible reason the trachea was deviated to the left. Petitioner agrees that the radiograph showed that the trachea was deviated to the left, but argues that because the question asks for the candidate's impression, she should attempt to answer why the body part was deviated. 2/ The written portion of the question and the radiograph do not provide sufficient information for a candidate to determine that Answer B was the reason the trachea was deviated to the left. Additional testing would be required before a practitioner could reach a correct diagnosis for the cause of the deviation. Answer A was the best answer to Question 36. Petitioner should not be awarded credit for her answer to Question 36 because her answer was not the best answer to the question. The written portion of Question 41 advised that the candidate's examination of a patient did not find a reason for the patient's mild back pain. The candidate was required to select the best answer to the question "[w]hat does the X-ray disclose." The greater weight of the credible evidence established that the only correct answer was the answer selected by Respondent as being the correct answer. Petitioner concedes that the X-ray disclosed what Respondent asserted was the correct answer, but chose another answer because Respondent's answer would not account for the patient's pain. Petitioner chose the answer that the X-ray disclosed a bilateral fracture. There was a dispute among the experts as to whether the X-ray contained jagged lines, which would indicate a fracture. Respondent's expert testified that there were no significant jagged areas. Dr. Stern testified that there may be some jagged areas, but that further testing would be necessary to reveal a fracture. Dr. Richard Santo testified that there were jagged areas that disclosed a severe fracture. The conflicting evidence is resolved by finding that the X-ray did not clearly disclose an area that had been fractured and did not disclose a bilateral fracture. Petitioner should not be awarded credit for her answer to Question 41 because her answer was not the best answer to the question. Respondent's psychometrician evaluated the responses to Question 36 and Question 41, and found that both questions performed at an acceptable level. For Question 36, 77% of the candidates who took the examination with Petitioner chose Respondent's correct answer, while 17% of the candidates choose Petitioner's answer. For Question 41, 74% of the candidates chose Respondent's answer, and 24% chose Petitioner's answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for her responses to Questions 36 and 41 of the X-ray portion of the Chiropractic Licensure Examination administered in November 2000. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of October, 2001.
The Issue Whether Respondent committed the offenses described in the administrative complaint filed against him? If so, what penalties should be imposed by the Board of Chiropractic?
Findings Of Fact Based upon the evidence received at hearing, the Hearing Officer makes the following findings of fact: Dr. Jordan Breslaw is now, and was in 1987, licensed to practice chiropractic in the State of Florida. Dr. Breslaw is the owner of Jordan Chiropractic Center. The Center is located in Margate, Florida. On or about November 11, 1987, Dr. Breslaw placed an advertisement in the Quad City News announcing that the Jordan Chiropractic Center would be hosting a "Community Appreciation Day" at its location in Margate on November 16, 1987. The advertisement contained the following representation: As an act of Community Service the Jordan Chiropractic Center will DONATE ALL SERVICES to anyone who wants to experience the benefits of Chiropractic. Everyone Welcome! [emphasis in original.] Appearing beneath this statement were drawings of gift- wrapped boxes and balloons. Next to these drawings were the following words in italics: "Entertainment," "Door Prizes," "Food and Refreshments," and "Meet The Merchants." The advertisement did not set forth the usual fees and charges for chiropractic services rendered at the Jordan Chiropractic Center; nor did it state that any patient or other person responsible for payment had the right to refuse to pay, cancel payment, or be reimbursed for payment for any service, examination, or treatment which was performed as a result of, and within 72 hours of responding to, the advertisement. Dr. Breslaw examined and treated patients at the Jordan Chiropractic Center on Monday, November 16, 1987. He charged these patients his usual fee for these services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Chiropractic enter a final order finding Dr. Jordan Breslaw guilty of the offenses charged in the administrative complaint and imposing an administrative fine of $1,000 and placing him on probation for three months, as described above, for his transgressions. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1989. COPIES FURNISHED: Cynthia Shaw, Esquire Department of Professional Regulation 1940 North Monroe Street Suit 60 Tallahassee, Florida 32399-0792 Dr. Jordan Breslaw 201 North State Road 7 Margate, Florida 33063 Pat Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, Florida 32399-0792
