Findings Of Fact Respondent graduated from the University of Havana Medical School in 1951 and practiced medicine in Cuba from that time until he immigrated to the United States in 1960. In Cuba his practice was primarily in the fields of obstetrics and gynecology. In his application dated 9 February 1975 to take the Florida Medical Examination, Respondent listed work at Hudson County Hospital for Mental Diseases (New Jersey) in 1960, work for the American Plasma Company (Miami) from 1965 to 1968, work at the Opa Locka General Hospital from 1967 to 1970, and that he was presently working as assistant doctor at 620 Southwest 1st Street, Miami. Prior to commencing this work at the Southwest Medical Clinic he contacted Physicians's Association of Clinics, Hospitals and Annex (PACHA), an organization which helps Cuban doctors obtain Florida licenses, and was told he could work at the clinic under Dr. Tomas and should register with the Board of Medical Examiners. Respondent registered with the Florida State Board of Medical Examiners as an unlicensed physician in two undated registrations, copies of which were admitted into evidence as Exhibit 5. In the earlier registration he states he is not a naturalized citizen and in the later application he states he is a naturalized citizen, although the year of naturalization is not shown. Anne West, who was apparently running an abortion referral service, called the State's Attorneys office in Miami on behalf of Respondent and was told Respondent could work at the clinic under a licensed doctor. She subsequently became Mrs. Bulas. Respondent testified he commenced doing medical work in the Miami area in 1975 when he became associated with and worked under the supervision of Kamel Tomas, M.D. in a clinic located at 620 Southwest 1st Street, Miami. He subsequently worked at this clinic under the supervision of two other licensed doctors whose names are Hernandez and Martin. In 1976 Respondent successfully passed the Florida Medical Examination and was licensed in July 1976. While working at the clinic on Southwest 1st Street Respondent performed several abortions. In an 18-count Information filed 23 March 1978 (Exhibit 1) for the period 1 May 1975 through 5 March 1976 Respondent was charged with 11 counts of unlawful practice of medicine, 6 counts of larceny and one count of unlawful termination of pregnancy. At his trial and upon the advice of counsel he pleaded nolo contendere, was found guilty of 10 counts of unlawful practice of medicine, six counts of grand larceny and one count of unlawful termination of pregnancy, and Adjudication of Guilt was withheld (Exhibit 2). Most of these charges alleged felonies. In Exhibit 3 the court stayed imposition of sentence and placed Respondent on probation for 5 years with a condition of probation that he be confined in the Dade County Jail for a term of one year. From reading the counts of the Information, as well as from the testimony of Respondent, it is clear that the larcenies alleged resulted from the fees charged by the clinic to those patients treated by Respondent, which formed the bases for the unlawful practice of medicine counts. The information alleging unlawful termination of pregnancy was based upon the performance of an abortion by Respondent while not licensed in Florida. The testimony was unrebutted that numerous clinics in Miami employ Cuban doctors who are unlicensed in Florida. In a class conducted at Jackson Memorial Hospital to prepare former Cuban doctors for the Florida examination there were about 460 in the class attended by Respondent, most of whom worked in clinics in Miami. At the time Respondent worked at the clinic he believed that so long as he was under a licensed doctor the medical work he performed was lawful. However, Respondent was not under the direct supervision of the licensed doctor as each was working on a different patient in separate examining rooms at the same time. No evidence was presented to indicate Respondent was not fully qualified by training and experience to perform the medical practices that he performed prior to receipt of his Florida license.
Findings Of Fact The parties have stipulated to the facts in this case as follows: The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County. The advertisement was published on September 16, 1987. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center". The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..." Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control". Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. J. STEPHEN MENTON 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 29th day of April, 1991. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive Suite 177 Laguna Niguel, CA. 92677-2040 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
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.
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.
Findings Of Fact The Respondent is a chiropractic physician who practices in Daytona Beach, Florida, and is licensed by the State Board of Chiropractic Examiners to practice in the State of Florida. The Respondent opened the office where he presently practices in September, 1978. On or about July 10, 1979, Judith M. Matovina telephoned the Respondent's office regarding severe headaches which she had been suffering. She had been referred to the Respondent by a friend, Michael Davis, who was studying to be a chiropractor, and who was also a friend of the Respondent. An appointment was initially made for Thursday, July 12; Ms. Matovina preferred to make an appointment for a time that would not interfere with her job, and an appointment was ultimately made for 10:30 a.m. on Saturday, July 14, 1979. Ms. Matovina arrived at the Respondent's office for her appointment at the scheduled time. She sat in the waiting room for approximately five minutes. Dr. Wagner came out to the waiting room after he treated another patient and introduced himself to Ms. Matovina. He gave her a pamphlet to read regarding the treatment of headaches by chiropractors, and a form to fill out which provided personal background and a description of symptoms. She filled out the form and handed it to the Respondent who escorted her to the examination room. He asked her questions about her headaches and about her personal life. She responded that she did not believe the headaches were tension related. He told her to remove her clothes and put on a gown. He left the examination room. Ms. Matovina removed her bra and blouse, but left her slacks and shoes on. After knocking, the Respondent reentered the examination room. The Respondent thereafter engaged in conduct, a portion of which was legitimate and proper chiropractic examination, treatment and therapy; and a part of which can only be construed as an effort to induce Ms. Matovina to engage in sexual activity with the Respondent. He engaged in conversation about his poor relationship with his wife, his relationships with his girlfriends, and the fact that he had had a vasectomy. Ms. Matovina had not been to a chiropractor before, and she expressed fear as to the nature of some of the manipulations and other treatment which the Respondent performed. He referred to her as "such a baby" in response to her fear. He examined her eyes, and told her that she had pretty blue eyes and that his girlfriends had brown eyes. Ms. Matovina asked him where his receptionist was, and the Respondent responded that he did not have a receptionist on Saturday because that is when he scheduled his pretty patients. During the course of one manipulation in which the Respondent held Ms. Matovina's feet, he told her that she had cute feet. In the course of one manipulation in which the patient stood against the wall with the Respondent's arm around her waist, he told her, "They are playing our song," in response to the music on the office stereo system. He held her hand as if he was going to dance with her. He kissed her twice on the shoulder, moved his hand toward her breast, and brushed his hand across her breast. Several times during the course of the examination, Ms. Matovina said that it would be best for her to leave, but the Respondent kept saying that they should try one more manipulation or therapy treatment. Ms. Matovina protested during the course of much of the treatment, and eventually insisted upon getting dressed and leaving. During the examination, the Respondent on several occasions referred to Ms. Matovina's "pretty blue eyes," to the fact that she was "such a baby," to the fact that he had other girlfriends, and a vasectomy. After she got dressed, the Respondent behaved as though none of these things had happened. Ms. Matovina insisted upon paying for the session at that time rather than the following Monday, when the Respondent wanted to schedule another session. Ms. Matovina then left the office. She was there for approximately two hours. The following week, the Respondent had his office contact Ms. Matovina to schedule further sessions, but she refused to accept or to respond to the phone calls.
The Issue The issue in this case is whether Respondent, Charles Leroy Mitzelfeld, D.C., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on February 6, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving chiropractic physicians licensed to practice in Florida. Respondent, Charles Leroy Mitzelfeld, D.C., is, and was at the times material to this matter, a physician licensed to practice chiropractic medicine in Florida, having been licensed in Florida since 1985. Dr. Mitzelfeld's license to practice has not been previously disciplined. Dr. Mitzelfeld's Practice. At the times material to this matter, Dr. Mitzelfeld operated Foundation Chiropractic (hereinafter referred to as "Foundation"), a chiropractic clinic located in West Palm Beach, Florida. Foundation employees three individuals, in addition to Dr. Mitzelfeld's wife, daughter, father, and mother.2 It is, and was at the times material to this matter, Dr. Mitzelfeld's practice to open the offices of Foundation between 5:15 a.m. and 6:00 a.m. each day the clinic was open.3 Dr. Mitzelfeld opened the clinic early in order to see patients who needed adjustments prior to reporting to their jobs. Once Dr. Mitzelfeld unlocked the front door at Foundation, the door remained unlocked and open to the public. After Dr. Mitzelfeld unlocked the front door and before staff arrived, whenever anyone arrived at Foundation and opened the front door, a buzzer or bell sounded to announce their arrival. Dr. Mitzelfeld established and maintained an "open- door" policy at Foundation. Pursuant to this policy, the doors to all of the treatment rooms at Foundation remained open at all times and staff were allowed to enter a treatment room at any time. Dr. Mitzelfeld did not as a matter of course, however, have a staff member present whenever he was seeing a female patient. The evidence failed to prove that, even though the front door of Foundation was unlocked at all times relevant to this matter and Dr. Mitzelfeld maintained an open-door policy, Dr. Mitzelfeld could not have from engaged in the conduct described in this Recommended Order. Dr. Mitzelfeld's Treatment of Patient C.H. On or about September 6, 2001 Dr. Mitzelfeld began treating patient C.H. C.H., a female, earned a bachelor's degree in political science in 1992, and was, therefore, in all likelihood in her 30's during the times relevant to this matter. During the period of time that Dr. Mitzelfeld was treating C.H., he was also treating C.H.'s husband.4 From the time that C.H. began coming to Foundation until approximately January of 2002, C.H. was seen by Dr. Mitzelfeld during the afternoon, when staff and other patients were present. Most often, her appointments were at approximately 3:00 p.m. In approximately January 2002 C.H.'s appointment time was moved, at her request, to the early morning, before staff arrived. C.H. began arriving at approximately 6:30 a.m. for treatments and, although on occasion there were one or two individuals in the waiting room, she usually saw no one else at Foundation other than Dr. Mitzelfeld during her appointments. After C.H. began seeing Dr. Mitzelfeld in the early morning, their relationship began to change from that of a purely doctor-patient relationship to a more personal one. Their conversations started to become more personal and, gradually, they became verbally flirtatious. For example, Dr. Mitzelfeld began to tell C.H. that she was pretty and that she looked good in whatever she was wearing. Dr. Mitzelfeld's personal comments were welcomed by C.H. She responded by telling him personal things about her life, telling him that her marriage was "terrible," that her husband no longer slept in the same room with her, and that they no longer had sexual relations. Dr. Mitzelfeld's comments to C.H. continued to become more flirtatious and suggestive. Among other things, he told her that he found her attractive and that he could not understand why her husband did not find her attractive and desirable. He also told her that, if her were married to her, "I would treat you so good and I would definitely be sleeping in the same bed with you and I'd be making love to you every night." Lines 11-14, Page 69, Transcript of June 19, 2003. As C.H. and Dr. Mitzelfeld became verbally flirtatious, C.H. began to perceive that the manner that Dr. Mitzelfeld touched her was no longer just professional, but more personal and intimate, a change she welcomed. The change in their relationship was not unwelcome to C.H. C.H. believed, without having discussed the matter directly with Dr. Mitzelfeld, that they "had a relationship" and that she "was in love with him and [she] thought he was in love with [her]." Lines 22-24, Page 67, Transcript of June 19, 2003. C.H. naively believed that the physical lust they were experiencing, amounted to something more emotionally meaningful. In approximately February 2002 Dr. Mitzelfeld told C.H. that he wanted to give her a hug after her treatment. They hugged and he kissed her on the cheek. After that, they hugged after each visit. Over time, their hugs became more lasting and intimate, with Dr. Mitzelfeld eventually becoming aroused to the point where he had an erection and "he would rub it all over [C.H.]." Lines 11-12, Page 70, Transcript of June 19, 2003. Dr. Mitzelfeld began performing a new treatment on C.H. for her upper back where she held her arms out to the side, he lifted her up from behind, and her body rested against his. Dr. Mitzelfeld would become aroused during these treatments; his penis would become erect.5 The increased intimacy between C.H. and Dr. Mitzelfeld, was not unwelcome to C.H., because". . . it was very obvious we were very attracted to each other and there was chemistry." C.H. was "happy about it. I mean, I was attracted to him so it didn't bother me at all." Lines 14-15, Page 70, Transcript of June 19, 2003. On May 9, 2002, during a prolonged hug, C.H. kissed Dr. Mitzelfeld on the cheek, then quickly on the mouth, and then passionately on the mouth, a kiss which Dr. Mitzelfeld returned. C.H. continued to naively believe that she was in love with Dr. Mitzelfeld and, although he had not said so, that he was in love with her. She took time prior to each visit to look as good as she could, doing her hair, nails, and make-up, and carefully selecting what she would wear, all in an effort to please Dr. Mitzelfeld and further the relationship she believed they had. On May 13, 2002, C.H. saw Dr. Mitzelfeld for the first time after the May 9th kiss. During this visit, Dr. Mitzelfeld told C.H. that they should not let anything like the kiss happen again "because if it does, [my] hands are going to start traveling and [your] clothes are going to come off." C.H.'s next visit was the morning of May 16, 2002. After receiving her adjustment, C.H. and Dr. Mitzelfeld began hugging and kissing passionately. Dr. Mitzelfeld put his hand down C.H.'s jeans and she began to rub his penis through his clothes with her hand. After a while, C.H. told Dr. Mitzelfeld that she "wanted to do something to him" although she did not specify what. Dr. Mitzelfeld took her by the hand and led her into a bathroom, locking the door behind them. Given the circumstances, Dr. Mitzelfeld correctly assumed that what C.H. wanted to do to him was sexual. Once in the bathroom, they continued to hug and kiss while she attempted to pull down his pants so that she could perform fellatio on him. He eventually pulled his pants down for her and C.H. began to fellate him. While she did, Dr. Mitzelfeld told her to "take it deep, baby." C.H. caused Dr. Mitzelfeld to have an orgasm, after which he told her repeatedly how much he had enjoyed it. She told him that next time she would bring whipped cream. Eventually, Dr. Mitzelfeld, having been sexually satisfied, realized the possible consequences of what had happened and told C.H. that what had just happened should not have; and that he had a great marriage and that he loved his wife. Dr. Mitzelfeld became cold and distant. Dr. Mitzelfeld knew that what had happened was unethical. C.H. left Foundation upset and, because of Dr. Mitzelfeld's comments and cold treatment of her, she spoke with a neighbor and her mental health counselor and told both what had happened. Her mental health counselor told her that what had happened was unethical and that she should report it. C.H., however, was not yet realized that Dr. Mitzelfeld did not have deep emotional feelings for her. By the next morning, May 17, 2002, C.H. had recovered from her concern over Dr. Mitzelfeld's reaction the day before and convinced herself that they indeed had a relationship. C.H. naively believed that Dr. Mitzelfeld had to have feelings for her because they had engaged in a sexual act. She decided to surprise him with an unscheduled visit to his office. C.H. dressed in a black negligee which she covered with a denim dress. She entered Foundation at approximately 6:30 a.m. She did not sign in upon arrival,6 which she normally did when she arrived for a scheduled appointment. She had not come to Foundation that morning for any medical treatment. Dr. Mitzelfeld, who was upstairs in his loft-like office, came downstairs to see who had come in and met C.H.. When he asked what she was doing there that morning, she told him she had something to show him, walked up the stairs to his office, taking off her dress as she went and leaving it on the stairs, and waited for him wearing only the negligee and black high- heeled shoes. She intended to engage in sexual intercourse with him. When Dr. Mitzelfeld came into his office and saw C.H. standing there, he told her that they could not do anything like they had done the day before. Dr. Mitzelfeld had realized that what he had done was unethical and he told C.H. so. He also told her that he could be in trouble for the incident, a prophetic comment. Dr. Mitzelfeld also told her that they could not kiss, hug, or have any other sexual contact again. Dismayed and confused, C.H. dressed, as Dr. Mitzelfeld instructed her, and left the Foundation, never to return. Later the same day, Dr. Mitzelfeld discussed C.H. with a colleague, Dr. Robert McLaughlin. Dr. Mitzelfeld asked Dr. McLaughlin for advice about what he should do about a patient, C.H., who had become agitated when he rejected her sexual advances. Dr. McLaughlin correctly advised Dr. Mitzelfeld that he should discontinue any doctor-patient relationship with C.H., an act which Dr. Mitzelfeld should have taken earlier when his relationship with C.H. started to become more than just a doctor-patient relationship.7 Dr. Mitzelfeld did not admit the events found is this Recommended Order to Dr. McLaughlin. Upset, disappointed, and angry about her May 17, 2002, visit with Dr. Mitzelfeld, C.H. reported the foregoing incidents to the Department on May 22, 2002, after finally realizing that her relationship with Dr. Mitzelfeld was based upon lust and not some deeper emotional feeling. The Department's Administrative Complaint and Dr. Mitzelfeld's Request for Hearing. On February 6, 2003, after investigating C.H.'s allegations, the Department filed a one-count Administrative Complaint against Dr. Mitzelfeld before the Board alleging that he had committed "sexual misconduct" in the chiropractic physician-patient relationship, which is prohibited by Section 460.412 and, therefore, that he had violated Section 460.413(1)(ff), which provides that "[v]iolating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto" constitutes a ground for disciplinary action. On or about March 18, 2003, Dr. Mitzelfeld, through counsel, filed a Petition for Formal Proceedings, indicating that he disputed the allegations of fact contained in Count I of the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a). On March 19, 2003, the matter was filed with the Division of Administrative Hearings, with a request that an administrative law judge be assigned the case. The matter was designated DOAH Case No. 03-0946PL and was assigned to the undersigned. C.H.'s Legal Name. At the times relevant to this proceeding and up until May 21, 2003, C.H.'s legal name was S.C.H.H. The "C" in her legal name and the last "H" are the same names in "C.H.," the name that she has gone by during the times material to this case and throughout this proceeding. When sworn in during her deposition in this matter on May 13, 2003, rather than stating that her name was S.C.H.H. she stated that her name was C.H. She did so simply because she has always gone by the name C.H. The evidence failed to prove that, because of her technical error, her testimony in this matter was not believable. On May 21, 2003, C.H.'s name was changed to C.S.L. as a result of her divorce. Throughout this proceeding, including when she was sworn in on June 19, 2003, to testify at the final hearing of this matter, she indicated that her name was C.H. Again, it is concluded that her technical error was insufficient to conclude that her testimony in this matter was not believable. C.H.'s Use of Prescription Medicines. At all times material to this matter, C.H. was seeing a mental health counselor. The evidence failed to prove why C.H. was seeing a mental health counselor. C.H. was prescribed and has taken Wellbutrin, Adderall, and Serzone. She also was prescribed and took Zolof for a period of two months. While these drugs, taken singly or in combination may have serious side effects,8 including hallucinations, the evidence failed to prove that C.H. had any such side effects. While C.H. admitted taking the drugs in question, the evidence failed to prove that she took them during the times at issue in this matter or, if she did, what dosage she took them in. Finally, while the evidence proved that C.H. has suffered from a number of maladies, the evidence failed to prove whether she was suffering from those maladies between September 6, 2001, and the date of C.H.'s testimony at final hearing or that any of her medical problems affected in any way her memory or truthfulness in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Chiropractic Medicine finding that Charles Leroy Mitzelfeld, D.C., has violated Section 460.413(1)(ff), by violating Section 460.412, as alleged in Count 1 of the Administrative Complaint; suspending Dr. Mitzelfeld's license to practice chiropractic medicine for a period of three months from the date the final order becomes final; requiring the payment of a $1,000.00 administrative fine within a reasonable time after the final order is issued; placing Dr. Mitzelfeld's license on probation for a period of two years; requiring that Dr. Mitzelfeld attend ethics courses relating to the practice of chiropractic medicine as it relates to sexual misconduct, as directed by the Board of Chiropractic Medicine; and requiring the presence of a third person during any examination and treatment by Dr. Mitzelfeld of any female patient during his probation and for a period of not less than ten years thereafter. DONE AND ENTERED this 28th day of August, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2003.
Findings Of Fact At all times relevant hereto, the Respondent, Michael F. Petrie, was licensed as a chiropractic physician by the Florida Board of Chiropractic. The Petitioner introduced no evidence relating to Count I of the Administrative Complaint. On or about February 3, 1982, the Respondent placed an advertisement in the Pompano Shopper's Guide, advertising the Petrie Chiropractic Life Center. (See Joint Exhibit 1.) This advertisement states, in pertinent part, ". . . To take a pill or more each day is dependency. Dependency is addiction! Whether these drugs are pushed or prescribed, you are an addict! CHIROPRACTIC can many times free you from drug dependency. . ." The advertisement makes reference to specific medical conditions, such as headaches, diabetes, stroke, high blood pressure and skin problems, which can be helped by chiropractic treatment. The testimony of Kenneth C. Lasseter, M. D., was offered via deposition as Petitioner's Exhibit 2. Dr. Lasseter stated his professional opinion that dependency on a drug is not the same as addiction. Drs. Michael Nathanson, Thomas Pasterski and Richard Hodish, all of whom are doctors of chiropractic and were accepted as experts in this field, testified that addiction and dependency are synonymous. (See Transcript, pages 48, 49, 95 and 101.) Their testimony was further substantiated by the definitions of addiction and dependency as found in the Encyclopedia and Dictionary of Medical and Nursing. Joyce Quintavalli, R. N., a psychiatric nurse specializing in the treatment of young people for drug problems, stated that from the practical standpoint there was no difference between dependency and addiction. Dependency and addiction are synonymous. Robert S. Butler, Jr., D. C., who was accepted as an expert in chiropractic, testified that the advertisement indicated that the Respondent's treatment could reduce a patient's need for medication for the enumerated conditions or illnesses and therefore opined that the advertisement was misleading. However, Dr. Butler stated that the medical conditions enumerated in the advertisement fall within the scope of practice of chiropractic, that chiropractic can treat patients for these problems with good results, and that treatment can lessen or free the patient from drug dependency. Dr. Butler stated his concern that the advertisement could encourage people to stop their medications, although he admitted that the advertisement does not urge or recommend to people that they cease taking medication. The chiropractic physicians enumerated in Paragraph 5 above testified that the conditions enumerated in the advertisement were within the scope of treatment of chiropractic, that they had treated patients for these diseases or conditions with good results, and that as a result of treatment their patients had reduced or ceased altogether taking medication which had been necessary prior to their treatment for control of their condition. The statements made in the advertisement are accurate and do not mislead the public concerning the scope of chiropractic, the benefits of chiropractic, or the Respondent's qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against Michael F. Petrie be dismissed. DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael F. Petrie, D. C. 410 NE 44th Street Fort Lauderdale, Florida 33334 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondents committed the offenses described in the administrative complaint? If so, what penalties should they receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Richard Grant is the Administrator of the Department of Health and Rehabilitative Services Pharmacy Program Office. His office is responsible for the administration and enforcement of the provisions of Chapter 499, Florida Statutes, relating to drug manufacturing, drug repackaging, drug wholesaling, device manufacturing and cosmetic manufacturing. Among its responsibilities is the issuance of permits to persons and entities engaged in activities over which it has regulatory authority. Respondents do not possess such a permit issued by Grant's office. In the latter part of 1986, on the basis of a complaint received from the Department of Professional Regulation, Grant directed that an inspection be conducted of a facility operated by Respondent Arthritis Medical Center, Inc. An inspection of the facility was attempted on January 16, 1987. Respondent Pinorsky, who is the President of Arthritis Medical Center, Inc., did not allow the inspectors to enter the premises. The inspectors therefore left without conducting an inspection of the premises. Another inspection of the facility was attempted on March 13, 1987. Again Respondent Pinorsky denied the inspectors entry. Accordingly, no inspection was conducted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 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 4th day of December, 1989.
