Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, 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 2nd day of September, 1983.
Findings Of Fact At all times pertinent to the issues involved in this hearing, Respondent was licensed by the State of Florida as a chiropractor under license number CH 0000997, first issued on January 12, 1952. In mid-April, 1983, Karen Surrency, a 35-year old divorced heavy equipment operator, suffering from low back pain resulting from a hip problem, went to Respondent at his office in Ft. Meade, Florida for assistance and treatment of the condition. When she arrived at the Respondent's office, which was located in his home, Respondent and his wife were both there. Shortly thereafter, Respondent's wife went back into the house. Respondent took a 10- minute history from Ms. Surrency in which she explained her physical problem. When the history was completed, Respondent asked her to go into the examining room where, he said, he was going to take x-rays. He advised her to go into the dressing area and disrobe, removing everything, including her underwear. He gave her a hospital gown to put on. Ms. Surrency did not question his request to remove all her clothing. When she came out of the dressing area wearing the hospital gown, Respondent placed her in front of the x-ray unit and told her he could get a better picture if she would throw the gown up over her shoulder. She did this and he placed her at the machine with her back to it, facing him. In the course of doing this, he placed his hand under her right breast, jiggled it, and advised her that her muscle sagged there. After completion of the x-ray, Respondent asked Ms. Surrency to sit on the examining table. He then told her to walk around the room with the robe pulled up over her shoulder so that he could see her posture. During this period, Respondent was seated on a chair observing her and when she asked him why the gown had to be placed up on her shoulder, he replied that he could see her hip and leg better that way. When this was finished, however, Respondent sat in the middle of one side of the table and had her stand between his legs. He then put his arm around her and turned her so that she faced off to one side with her side toward him. In so doing, he touched her breast, through the material of the gown, with his left hand. After this, he told her to lay face down on the examining table and when she did, he adjusted her back with the gown open from the neck down. After completing the spinal adjustment, Respondent indicated he would like to see Ms. Surrency twice a week and set up a second visit for her two days later. When she came for this second visit, Respondent again asked her to disrobe. She asked him if it was necessary to fully disrobe and he indicated it would be better. Once she had done so, wearing a hospital gown again, Respondent had her walk around with the robe up over her shoulders as he had done on the previous visit while he observed her and then told her to do some push-ups. She got down on the floor and complied and when she did the gown, which was open at the back, fell down to her sides and she was bare. Neither at this time nor prior to this visit had Respondent indicated or instructed Ms. Surrency to exercise at home. Once she completed the push ups, Respondent advised her to again lay face down on the examining table and when she did so, he completed another spinal adjustment. While she was still laying face down, he spread her buttocks apart and told her she did not have any hemorrhoids. This struck her as odd since she had not complained to him about any problem of that nature and there was no need for him to do this. In any event, Respondent then told her to turn on to her back. When she did so, Respondent sat on one end of the table facing inward, with one of his legs over each side. This put him in a position of facing the patient. He then told her to slide down closer to him and place her spread legs one over each of his. He told her he was going to massage her muscles which he did by rubbing in a circular motion starting above the pubic hair and working down inside her thighs. At no time, according to Ms. Surrency, did he touch her in the vaginal area. Respondent then, upon completing this procedure, told her to get dressed. Ms. Surrency did not go back to Respondent for any further treatment after this second visit because, in her opinion, she did not believe Respondent should have done the things to her that he did. In the first place, she did not think it was appropriate for him to examine her nude without a witness, preferably a female present. In the second place, on one of the two occasions, while she was getting dressed, though she had not complained about having any difficulty in removing her clothing, Respondent asked her if he could help her with her bra. Ms. Surrency subsequently went to another chiropractor, Dr. Tucker, for the same physical complaints. Dr. Tucker took x-rays of her but she was allowed to wear a robe, her panties, and socks. Dr. Tucker also had her walk but in so doing, she was allowed to wear her uniform pants, her bra, and the hospital gown. Dr. Tucker never asked her to remove all her clothing or to pull the hospital gown up over her shoulders as Respondent did. He also did not touch her breasts or check her for hemorrhoids. He did not perform a massage of the pubic area. In addition to Dr. Tucker, Ms. Surrency also visited a Dr. Haig, also practicing in Ft. Meade, for the same problem. Dr. Haig, who also took x- rays and also had her walk, treated her the same as Dr. Tucker did. Ms. Surrency did not complain either to or about Respondent at the time he did the things to her which offended her as described above nor did she attempt to stop him from doing them while he was doing them. In fact, she has no quarrel with the diagnosis that Respondent made of her condition and his suggested course of treatment which included several subsequent spinal adjustments. In fact, the other two chiropractors to whom she went after leaving Respondent's care suggested the same treatment. Her complaint is more toward the method of examination; the failure to have a witness present and the requirement for nudity in the course of the examination. Ms. Surrency did not actually complain to anyone until some five or six months after leaving Respondent's care. At that time she filed a complaint with the Petitioner, Board of Chiropractic Examiners. She had in the interim, however, called Respondent on the phone on several occasions regarding securing his signature on certain insurance papers and getting a release of her records. On one of these occasions, Respondent asked her why she had stopped coming to see him. Thereafter, when she went to his office to pick up her papers, Respondent refused to give them to her until she went in to talk with him about her alleged complaint. Dr. Tucker was visited by Ms. Surrency, in June, 1983, when she complained of an unusual indentation in her left hip and pain between her shoulder blades. This pain radiated down through the lower back to her leg. On her first visit, she advised Dr. Tucker that she had seen the Respondent prior to that time for two visits but did not want to talk about what had happened. It was only after she had seen Dr. Tucker two or three times that she began to describe her problems with the Respondent and asked if the procedures he had followed were normal. Whenever she would talk of these incidents she would break down and cry. It was the opinion of Dr. Tucker and that of Dr. Walper as well, both qualified chiropractors licensed in Florida, that the procedures followed by Respondent in many respects were outside the boundaries of normal and proper chiropractic treatment. For example, when Dr. Tucker does an x-ray of a female patient, depending upon the area to be photographed, the patient is not required to be totally nude. In a situation such as Ms. Surrency's, the patient would wear a hospital gown and keep her underpants on. In Dr. Tucker's opinion, contrary to that of the Respondent, it is quite possible to get an x-ray of good quality with the patient wearing a gown and nonmetallic underclothing, and has never had a patient completely nude with the gown up over her shoulder. As to requiring the patient to walk, a patient with Ms. Surrency's complaint would do so wearing a gown with her underwear. There is no medical reason for total nudity and for the patient to have a gown up over her shoulder. Since this was a hip problem, it would be necessary to observe the hip but caution is required not to embarrass the patient as was done in this case. Dr. Tucker could see no reason for an examination of the buttocks area as was accomplished by Respondent for the complaints that Ms. Surrency had. Dr. Walper, who has practiced as a chiropractor since 1950 and in Florida since 1976, did not examine Ms. Surrency but did review the report of investigation completed by Petitioner's investigator which included the statements given under oath by the patient. Based on this review, be concluded that Respondent's techniques were totally unacceptable and did not meet community standards. As to the nudity involved in the x-ray, be was of the opinion that it was totally unnecessary because the x-rays will penetrate clothing except metal and there is no reason to require the patient to pull the hospital gown up over her shoulder. Admitting that substantial medical authority indicates that clothing should be removed for x-rays as far as possible, he contends that the operative words here are "as far as possible" and this does not envision the necessity for total nudity inasmuch as the shadow created by something as flimsy as underpants would be inconsequential to an adequate evaluation of the radiographic picture. With regard to the walk Respondent had Ms. Surrency perform, Dr. Walper agrees that it would be appropriate for a patient with Ms. Surrency's problem to be asked to walk so that the physician might observe the gait. However, the technique used here, requiring the patient to walk nude with the gown up over her shoulder, was inappropriate and unnecessary. There was, in his opinion, no need whatever for the patient to be naked. Dr. Walper can also see no medical reason for Respondent to touch the patient's breasts, even though the second touching was done through the gown and to do so would be inappropriate. As to the buttocks examination, this would not be medically necessary for the type of complaint this patient had. It would be appropriate if the patient had complained of hemorrhoids or if it were accomplished during a routine physical. However, Ms. Surrency had not complained of a hemorrhoid problem and had come in with a specific complaint, not for a routine and general physical examination. Walper is unable to understand any reason for requiring the patient to do push-ups. Admittedly there are some exercises to be done for Ms. Surrency's condition after the symptoms have been relieved, but certainly not push-ups and not in the nude during a physical examination. As to the pubic and thigh rubbing accomplished by Respondent when he had Ms. Surrency place her legs over his, this type of touching for this patient's complaint, in his opinion, would be most inappropriate. Dr. Walper indicated, and it is so found, that practice standards for chiropractors are reasonably similar throughout the State of Florida. In his opinion, the treatment afforded Ms. Surrency by Respondent in the incidents set out in the Administrative Complaint, were outside the scope of chiropractic and Respondent did not perform here with reasonable skill or in a manner which would be followed by a reasonably prudent doctor of chiropractic under the circumstances. What Respondent did here, in Dr. Walper's opinion, constitutes sexual impropriety and misconduct. Respondent has been a chiropractor since 1952 when he graduated from the Lincoln Chiropractic College and has practiced in Florida since 1953. He located his practice in Ft. Meade in 1960. Chiropractic education is divided into two schools of thought. One is made up of "mixers" and the other is made up of "straights." Respondent attended a "mixer" school. The difference in his education was that he was taught to (a) take a good case history, (b) treat for any problem found; and (c) treat to cure the problem rather than the symptoms. He defines chiropractic medicine as dealing primarily with the skeletal system, the joints, and adjacent tissues. Respondent recalls the first visit he had from Ms. Surrency and basically confirms her comments regarding it. While he indicates that it is routine for him to require total nudity under the gown on a first x-ray, from that point on, be says, the patient is allowed to keep their underpants on. He requires the patients to remove the clothing so that it does not get into the way of the x-ray and also because he wants to cut down on the strength of the x- ray required to accomplish the picture. Respondent contends that synthetic fibers such as found in women's underwear are metal and require the use of stronger x- ray. There is no evidence, save Respondent's allegations, to support this theory and it is rejected. Respondent denies that when he spread Ms. Surrency's buttocks he was examining the rectum. Instead, he claims, he was palpating the large muscle of the buttocks area during the examination of everything as he was taught. His examining table has a pelvic roll, he says, which would present the buttocks of a patient on her stomach more prominently than would a table used by graduates of a Palmer school of chiropractic medicine. There is a substantial difference between palpating of muscle and the spreading apart of a buttock and the comment which Ms. Surrency made regarding her hemorrhoids supports a finding that he did in fact spread her buttocks since it would be impossible to see hemorrhoids were the buttocks not spread apart. Respondent admits that he may have touched Ms. Surrency's breast and if he commented on it, he claims, it was merely a casual observation of something he saw. He meant nothing by it. As to the requirement that Ms. Surrency walk nude in front of him, he contends he wanted to observe her feet, knees, and shoulders to see how she looked all over. He again wanted to see her walk after he had performed the adjustment to see if the treatment had done any good. He admits having required the patient to pull the gown up over her shoulder contending that it was just some procedure he picked up during his practice. It works for him and as far as he is concerned, that's all that matters. When Ms. Surrency returned to him the second day before the examination he sat with her and discussed what he had found on the x-rays he had taken during the first visit. He told her that her spine was off center and there were five areas in it that required adjustment. He also told her he could not tell her how long it would take to resolve the problem because the numerous variables involved made it impossible for him to accurately predict a course of treatment. He also admits that he had Ms. Surrency place her legs over his as described in her testimony but defends it on the basis that because he suffers from phlebitis and cannot stand long on his legs, this being the end of the day and since he was tired and his leg was hurting, he utilized this procedure so that he could be sufficiently comfortable to apply equal pressure to the area he was massaging. He applied the "goading" technique of accupressure to various areas above and on the pubic bone to get the patient's muscles to relax and to prompt the lymphatic system to start flowing. Respondent contends this method of treatment is a long standing and accepted practice. The massage technique may well be an accepted practice but the method applied here by Respondent in having the nude patient's legs draped over his with her genital area facing him was not. Respondent then had the patient do the push-ups to determine her muscle balance, a factor important in relationship to the adjustment of the spine. This was related to the pain in between the shoulder blades, not for the low back. Respondent's testimony was not based on his actual recollection but instead is primarily his speculation as to what happened based on his normal practice. He does not recall a majority of the events on either day he saw Ms. Surrency. She is quite sure of her testimony. There is little equivocation and even less speculation. On balance, then, it is clear that the story as told by Ms. Surrency is more credible and worthy of belief. Consequently, it is found that her allegations as to the actual occurrences are accurate. Respondent's explanations do not deny the occurrences, but tend to present some self justification for it. In 1977, a Final Order of the Board of Chiropractic revoked Respondent's license to practice in the State of Florida based on an administrative hearing which resulted in findings that Respondent was guilty of unprofessional conduct the circumstances of which we are not concerned with here. An appeals court subsequently sustained the findings of fact but reduced the revocation to a suspension for six months and Respondent's license was subsequently reinstated after he had served the period of suspension.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Respondent, IVAN C. ROSS' license as a chiropractor in the State of Florida, Number CH 0000997, be revoked. RECOMMENDED in Tallahassee, Florida, this 18th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division Administrative Hearings this 18th day of February, 1985. COPIES FURNISHED: Edward Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Douglas H. Smith, Esquire Post Office Box 1145 Lake Alfred, Florida 33850
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 The issue in the case is whether Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2-15.001(2)(e)3. are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioner, a Florida-licensed chiropractor, is the subject of an Administrative Complaint filed against him by the Department of Health, Board of Chiropractic. The Administrative Complaint alleges that the Petitioner's letterhead identifies him as a "CICE (Certified Independent Chiropractic Examiner)" and that such designation requires a disclaimer as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e)3. The Administrative Complaint further alleges that the use of the designation constitutes a deceptive and misleading advertisement pursuant to Florida Administrative Code Rule 64B2- 15.001(2)(e). The Administrative Complaint was filed as the result of a complaint against the Petitioner filed by another chiropractor. The American Board of Independent Medical Examiners (ABIME) bestows the designation "CICE" on chiropractors. Some chiropractors such as the Petitioner obtain the designation by completing a 20-hour course over a weekend and then passing a test. A witness for the Respondent, Dr. Ronald Lee Harris, obtained the designation by working with the ABIME on reviewing examination questions used by the ABIME and has not completed any course of training related to the CICE designation. Another witness for the Respondent, Dr. Stanley Kaplan, testified that he was listed on the ABIME website with the CICE designation, but that he was unaware of the designation until the day prior to the hearing and has not completed any course of training related to the CICE designation. Florida Administrative Code Rule 64B2-15.001(2)(e) provides as follows: 64B2-15.001 Deceptive and Misleading Advertising 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) Conveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, possess 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 Specialities recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each speciality 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 specific 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.” The Petitioner asserts that the phrase "other than a simple listing of earned professional post-doctoral or other professional achievements" as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e) is vague and fails to properly apprise a reasonable person as to what is prohibited. The Respondent presented the expert testimony of three witnesses during the hearing. Two of the three witnesses offered differing opinions as to what constitutes "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Stanley Kaplan testified that the phrase would permit a chiropractor to list only his chiropractic degree, but also indicated that a "simple listing" could include any items a chiropractor would include on a curriculum vita. Dr. Ronald Lee Harris testified that the phrase includes only the chiropractic degree and that listing "achievements" other than a degree and Diplomate status would require inclusion of the language related to the awarding entity's lack of affiliation with or recognition by the Florida Board of Chiropractic Medicine (the "disclaimer language"). Dr. Harris testified that the information set forth on a curriculum vita would not be properly included in "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Steven Willis testified that the phrase "simple listing of earned professional post-doctoral or other professional achievements" could be viewed as vague if considered outside the context of the remainder of the rule section, but asserted that the language set forth in subsection 3 of Florida Administrative Code Rule 64B2- 15.001(2)(e) clarified the phrase. Dr. Willis' testimony was credible and is accepted. Based on the testimony of Dr. Steven Willis and a contextual reading of the Rule, Florida Administrative Code Rule 64B2-15.001(2)(e) is not vague. The evidence establishes that the reference to "a simple listing of earned professional post-doctoral or other professional achievements" achievements in Florida Administrative Code Rule 64B2-15.001(2)(e) is limited by subsection 3 to require inclusion of a disclaimer in certain specific circumstances. Clearly a chiropractor can advertise the fact that he has received a doctorate in chiropractic medicine. A chiropractor may also advertise "earned professional post- doctoral or other professional achievements," whether or not the Board of Chiropractic Medicine has recognized the conferring entity. In the event the Board has not recognized the conferring entity, the advertising chiropractor must include the disclaimer language when the designation connotes "recognition as a specialist in any specific chiropractic or adjunctive procedure." The Petitioner further asserts that Florida Administrative Code Rule 64B2-15.001(2)(e)3. is vague because the phrase "specialist in any specific chiropractic or adjunctive procedure" is capable of multiple interpretations. The evidence establishes that, within the context of the Rule, "specialist in any specific chiropractic or adjunctive procedure" has sufficient meaning to convey who is being identified and is therefore not vague. The Rule requires only that where an advertising chiropractor represents himself to be a specialist in any chiropractic or adjunctive procedure by virtue of a "certification" from an unrecognized entity, the advertising must include the disclaimer language that the certification was received from a "private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine."
The Issue The issues are whether Respondent is guilty of making or filing a false report signed in the capacity of a licensed chiropractic physician, in violation of Section 460.413(1)(j), Florida Statutes, and, if so, the penalty.
Findings Of Fact Respondent has been a licensed chiropractor in Florida since 1978, holding license number CH0002696. Petitioner requires licensed chiropractors to file Mandatory Practitioner Profile Questionnaire Packets (Profiles). The subject Profile was due on or before April 15, 1999. The Profile asks the licensee to supply various items of information and answer several questions. Section II of the Profile requires information concerning "medical education." In response to the question of what medical school Respondent attended, he wrote: "Logan 'Quack Con-Artist' School of Chiropractic." In response to the type of his degree, Respondent wrote: "Quack Con-Artist Chiropractic Degree." In response to questions concerning medical training, Respondent answered: "'Fraudulent' Automobile Personal Injury Cases (Robbing Insurance Companies)" and "'Fraudulent' Workers Compensation Cases (Robbing Insurance Companies)." Respondent also added to these responses, as well as the responses cited in the preceding paragraph, the following: "Caveat: see letter dated April 7, 1999 sent to Gloria Henderson, Division Director)." Section VIII of the Profile requires information concerning criminal offenses. This section asks: "have you ever been convicted or found guilty, regardless of whether adjudication of guilt was withheld, or pled guilty or nolo contendere to a criminal misdemeanor or felony in any jurisdiction?" The question then states: "If "YES," briefly describe the offense(s), indicate whether the conviction is under appeal, and attach copy of notice of appeal." The form supplies three lines for each of these items of information. Respondent answered "no" to the first question in Section VIII and left the remainder of the section blank. The Profile concludes, immediately above the signature line: "I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 455.624, 458.327, 458.331, 459.013, 459.015, 460.413, 461.013, 775.082, 775.083 and 775.084, Florida Statutes." Respondent signed on the signature line and added the date of April 7, 1999. Immediately beneath the signature line, Respondent added: "Notice: Signed under caveat--see letter dated April 7, 1999 sent to Gloria Henderson, Division Director." Respondent's four-page letter to Gloria Henderson dated April 7, 1999, references the Profile, notifies Ms. Henderson and Petitioner of Respondent's intent to sue, and demands that Petitioner omit Respondent's listing from a website of chiropractors because, in part, "I do NOT accept their 'valueless treatment' known as an "adjustment" (it is a waste of money and time), and because I practice health care from an "Allopathic" (medical approach) point of view, including but not limited to, surgery, drug prescription, physical therapy " Respondent states in the letter that the Petitioner's failure to incorporate his comments in all computer files listing him as a chiropractor will result in his filing a federal action under tort and constitutional law seeking $1 million plus punitive damages. The final caveat in the April 7 letter states: My (Roy A. Day) signature on the instant letter, and the associated completed questionnaire, reflects the denial of Roy A. Day to have meaningful access to so-called "licensed attorney" courts of law, and the associated denials of each and all discovery, and trial by jury, and the right to each and all appeals, and the denial to write a brief on appeals, and each and all associated "railroading" of Roy A. Day, with the overlay for "licensed attorney" courts of law to deny the law, facts and evidence existed when they pertained to Roy A. Day, since Roy A. Day is not represented by a so-called "licensed attorney" at $300.00 per hour in artificial-monopolistic legal fees. In addition, the signature reflects each and all associated "forced and coerced" action, specifically, Roy A. Day has been denied "due process and equal protection of the law." On February 6, 1995, Pinellas County Circuit Court entered an Order of Probation. The Order states that Respondent pleaded guilty to aggravated stalking, interception of oral communication, and uttering a check with a forged endorsement. The Order withholds adjudication and places Respondent on probation for two years. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of two counts of the third-degree felony of uttering a check with a forged endorsement, in violation of Section 831.02, Florida Statutes. The checks totaled approximately $20,000, and, sometime between March 13 and May 5, 1993, Respondent passed each check knowing that the signature of his brother, Donald Day, was forged. For each count, the court sentenced Respondent to one year in jail with credit for 130 days he had already served in jail, and the sentences ran concurrently. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of the third-degree felony of aggravated stalking, in violation of Section 784.048(3), Florida Statutes. The stalking consisted of repeated and harassing telephone calls that Respondent made to the house of a person who had, at one time, expressed interest in purchasing a home in which Respondent had an interest, but later decided not to pursue the purchase. The court sentenced Respondent to one year in jail with credit for 133 days that he had already served in jail, and this sentence ran concurrently with the sentences for uttering a check with a forged endorsement. Petitioner lacked a copy of a judgment concerning the interception of oral communications. This offense arose out of Respondent's surreptitious recording of a conversation that he had with a police officer who was investigating the stalking charges. Absent a copy of the judgment, however, insufficient evidence of this conviction exists for the purpose of this disciplinary case. At the final hearing, Respondent explained that he did not disclose these criminal convictions on the Profile because doing so would somehow implicate him as a "co-conspirator" in the injustices perpetrated upon him by the authorities involved in prosecuting these offenses. Respondent falsely failed to disclose on the Profile his convictions for aggravated stalking and uttering a check with a forged instrument. His failure to disclose this information constitutes fraudulent concealment of these criminal offenses. In a fairly straightforward case, Respondent has filed nearly 250 pleadings containing thousands of pages. He also abused the subpoena power of this tribunal by subpoenaing judges and court officials from every level of the federal and state judiciaries. Last but not least, Respondent has defamed and discredited numerous persons without apparent reason, although some question exists whether Respondent is capable of exercising consistent control over the impulses leading to at least some of these utterances. The crimes of which Respondent was convicted may have arisen out of family disagreements, possibly concerning the sale of a family home. Respondent may be obsessively preoccupied with actual or perceived injustices that he suffered as a result of this transaction. Undoubtedly, Respondent compulsively litigates everything that has the most remote bearing upon this transaction, using court files as archives for materials that he believes will vindicate him, despite an ardent and often- expressed repulsion for judges, lawyers, and others connected with the legal system. No penalty but revocation is suitable under the circumstances, absent a showing by Respondent that he has commenced or is continuing therapy and that the prognosis is reasonably good. The record lacks such evidence. Respondent is not unintelligent, nor is he entirely devoid of insight. His thinking, although at times disordered, is capable of impressive organizational efforts, as best revealed by his meticulous organization in his proposed recommended order of what otherwise seemed to be a bewildering variety of materials that Respondent has seen fit to file in this case. Although his behavior seems at times compulsive, Respondent was capable of a certain level of self-restraint, at least during the hearing and when not directly confronting the underlying transaction or crimes. If they occur at some point in the future, successful diagnosis and treatment of Respondent should inform Petitioner's interpretation of the events and behaviors described in this Recommended Order, if Respondent seeks relicensure as a chiropractor.
Recommendation It is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Respondent guilty of violating Section 460.413(1)(j), Florida Statutes, and revoking his license. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 19th day of July, 2001. COPIES FURNISHED: Joe Baker, Jr. Executive Director Board of Chiropractic Medicine 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Theodore M. Henderson Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Wings S. Benton, Senior Attorney Agency for Health Care Administration Office of General Counsel Medical Quality Assurance Practitioner Regulation--Legal Post Office Box 14229 Tallahassee, Florida 32317-4229 Roy A. Day Post Office Box 33 Tarpon Springs, Florida 34688-0033
Findings Of Fact At all times relevant thereto, Respondent, Anthony S. Coco, held chiropractic license number 0001508 issued by Petitioner, Department of Professional Regulation, Board of Chiropractic Examiners. He is authorized to practice chiropractic in the State of Florida and presently maintains an office at 65 Royal Palm Beach Boulevard, Vero Beach, Florida. In response to a newspaper advertisement, Thomas A. Murphy visited the office of Respondent on May 13, 1980, regarding treatment of low back pain, impotence, nervousness, headaches and general aches and pains. Murphy had a 100 percent service-connected disability and was already being treated by a medical physician for other undisclosed ailments. Murphy was given a complete examination by Coco, including neurological and orthopedic tests. Additionally, eight x-rays were taken of the patient. As a general practice, Coco does not record negative (or normal) results on the patient's records. Because all tests except the x-rays were negative, the results of the examination were not reflected on Murphy's patient records. However, a detailed record of his findings were prepared in a request for authorization to provide chiropractic treatment forwarded to the Veteran's Administration (VA) on May 15, 1980. The request was later denied by the VA, and Murphy terminated his relationship with Respondent. Murphy became involved in a dispute with a secretary in Coco's office and filed a complaint against him with Petitioner. Petitioner then retained the services of an outside consultant, Dr. Fred C. Blumenfeld, to examine Murphy's patient file. Blumenfeld was initially given an incomplete file to examine, and based upon his initial review of the incomplete file, concluded that Respondent failed to exercise reasonable care in his treatment of Murphy. That precipitated the instant proceeding. Prior to the final hearing, Blumenfeld gained access to the entire file, and upon examining the same, reached an opinion that no "malpractice" had occurred. Although he testified that he would have marked the x-rays differently, and would have noted all negative findings on Murphy's patient chart, he did not otherwise criticize Coco's treatment of Murphy, and saw no basis for the issuance of an administrative complaint. Three other experts, including a nationally recognized professor of chiropractic and a former member of the Board of Chiropractic Examiners, each concluded that Coco's treatment of Murphy was proper and consistent with generally recognized standards of skill and care of chiropractors in the community. They also concluded that Coco's diagnosis of Murphy's ailments, as reflected on his patient notes and letter of May 15, were consistent with the x- rays taken of Murphy. Although Mr. Murphy appeared at the final hearing, he did so reluctantly and had no complaint regarding his examination and the diagnosis rendered by Coco.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED this 21st day of March, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 21st day of March, 1983.
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 L. R. Fleming is a chiropractic physician licensed by the Florida State Board of Chiropractic Examiners and holds License #1239. Dr. L. R. Fleming caused to be published in the Today Newspaper an advertisement, a copy of which was introduced into evidence as Petitioner's Exhibit 1. This advertisement read as follows: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute in conjunction with the New York Chiropractic College is presently engaged in what is the most extensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignments and utilizes a screening process called Contour Analysis. Volunteers are being sought for screening. Contour Analysis enables taking a three- dimensional picture (called Moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient symptomatology, and levels of tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasms, muscle imbalance, spinal distortions and scoliosis. There is no charge to participating volunteers, since the doctors are contributing their time, service, and facilities for the program. Final processing and evaluation will be done at the New York Chiropractic College. Anyone wishing to be a volunteer may telephone participating doctors directory for information or an appointment. MERRITT ISLAND TITUSVILLE MELBOURNE (doctor's (doctor's Dr. Lyle name deleted) name deleted) Fleming Phone 254-3343 The advertisement above was published in the Today Newspaper on or about April 1, 1978. Gladys Teate, of Melbourne, Florida, read this advertisement on or about April 1, 1978, and made an appointment with dr. Fleming for contour analysis on April 11, 1978. Gladys Teate kept the appointment on April 11, 1978, and had a contour analysis performed at Dr. Fleming's office. The process of contour analysis consisted of the taking of certain personal data together with symptomatology from Gladys Teate by one of the doctor's assistants. Thereafter, the doctor's assistant took a Moire photograph of Teate's back. Teate was then seen by Dr. Fleming, who performed an elementary examination of Teate's back and explained the Moire photograph to her. Teate had no recollection of the contour analysis, Dr. Fleming's examination, or any subsequent events to include any oral representations made by Dr. Fleming. However, records reflect that x-rays were taken of Teate at Dr. Fleming's office. Thereafter, a thorough chiropractic examination was performed by the doctor, who prepared a written diagnostic recommendation, a copy of which was introduced as Petitioner's Exhibit 3. Teate was unclear as to whether she saw Dr. Fleming on one or two (2) occasions; however, she was given a bill for $10 for a chiropractic examination and a bill for $45 for x-rays upon leaving Dr. Fleming's office. There was no charge for the contour analysis. No competent evidence of Dr. Fleming's indicating that further examination and diagnosis was free was presented. No evidence was introduced that the research program described in the advertisement was not a legitimate research program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners take no action against the license of Dr. L. R. Fleming, D.C. DONE AND ORDERED this 21st day of September 1979 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul W. Lambert, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Louis V. Cianfrogna, Esquire 308 Julia Street Post Office Drawer 6310-G Titusville, Florida 32780 Board of Chiropractic Examiners 6501 Arlington Expressway Building B, Suite 202 Jacksonville, Florida 32211
