Findings Of Fact Good Samaritan Hospital, Inc. d/b/a Good Samaritan Medical Center ("Good Samaritan") is a 341 bed not-for-profit community hospital in West Palm Beach, established over 73 years ago. West Palm Beach is located in Agency for Health Care Administration ("AHCA") District 9. Its services include obstetrics and neonatal, medical and pediatric intensive care. Good Samaritan also opened an outpatient cardiac catheterization ("cath") laboratory of 1399 gross square feet, approximately two weeks prior to the start of the final hearing in this case. The establishment of an outpatient laboratory does not require a certificate of need. At the time the final hearing commenced, two procedures had been performed in the Good Samaritan outpatient cath lab. Written protocals exist for transfers to facilities with open heart surgery programs. Here, Good Samaritan is an applicant for a certificate of need ("CON") to provide adult inpatient cardiac cath services in the same cath lab. AHCA is the state agency which administers CON laws in Florida. AHCA published, on August 7, 1992, a fixed need pool showing a net need for two additional cardiac cath programs in AHCA District 9. On January 11, 1993, AHCA issued a State Agency Action Report ("SAAR") preliminarily approving Good Samaritan's CON. St. Mary's Hospital, Inc. ("St. Mary's") is a 430 bed hospital with acute care, psychiatric, and Levels II and III neonatal intensive care beds, located in West Palm Beach, Florida in AHCA District 9. St. Mary's is located 3 miles, or a 5 to 7 minute drive from Good Samaritan, and is an existing provider of adult inpatient cardiac cath services. Open heart surgery services are not available at St. Mary's. Palm Beach Gardens Community Hospital, Inc. ("Palm Beach Gardens") also in AHCA District 9, is located approximately a 25 minute drive from St. Mary's. Palm Beach Gardens' services include adult inpatient cardiac cath in a two room laboratory, and open heart surgery. There are eleven cath labs in District 9. Palm Beach Regional, Lawnwood in St. Lucie County, and a doctor in Martin County operate outpatient facilities. Five hospitals serve inpatients and outpatients - Boca Raton, St. Mary's, Martin Memorial, Bethesda, and Indian River. Three others, Palm Beach Gardens, JFK Medical Center and Delray Community Hospital, have cardiac cath labs at hospitals which also provide open heart surgery services. By prehearing stipulation, the parties agreed that the historical quality of care at Good Samaritan is not at issue. Palm Beach Gardens asserts that Good Samaritan's application was incomplete. Application Content Submitted with the Good Samaritan application was a certificate of the custodian of its records which relied on an April 20, 1989 resolution of Good Samaritan's Board of Directors as authorization for the filing of ". . . an application as described in the Letter of Intent." On August 25, 1989, Good Samaritan filed a letter of intent, with the Board's April 20, 1989 resolution, announcing its intent to apply on September 27, 1989, to establish inpatient cardiac cath and open heart surgery services, and to convert ten medical/surgical beds to intensive care beds for an estimated capital cost of $4,950,000. The 1989 resolution has not been withdrawn. The President of Good Samaritan, William J. Byron, testified that Good Samaritan never filed a joint application for cardiac cath, open heart surgery and intensive care beds, as described in the 1989 letter of intent. Good Samaritan also, he testified, never filed an application for cardiac cath services in 1989, but did file cardiac cath applications in 1990, and 1991 and the one at issue, in 1992. In February 1991, Good Samaritan's Board passed a resolution authorizing the filing of a CON application for inpatient cardiac cath services. Mr. Byron considered that resolution a reaffirmation of the 1989 resolution and decided to file the 1989 resolution with this application. The predecessor of AHCA initially notified Good Samaritan that the 1989 letter of intent for combined services was rejected. Subsequently, in November 1989, Good Samaritan was notified that the initial rejection applied to open heart surgery, because these were competing applicants, but that it would extend a grace period to apply for cardiac cath services to October 27, 1989, due to the absence of any competing applicants. What was intended in the letter which postdated the date it gave for the grace period was not established. Mr. Byron testified that Good Samaritan filed the February 1990 application, referencing the 1989 resolution, in accordance with the agency's grant of a grace period. Need For the Subject Project In August 1992, AHCA published its finding that a numeric need exists for two additional adult inpatient cardiac cath programs in District 9, by July 1995. The 1990-1991 local health plan for District 9 includes two factors for determining need and for allocating CONs for cardiac cath and open heart surgery services. The first District 9 factor favors facilities with an historical record of or commitment to serving Medicaid and indigent, handicapped or other underserved population groups. Good Samaritan's service to Medicaid patients increased from .2 percent in 1985 to 1.1 percent in 1989, then from 5.0 percent in 1990 to 11.2 percent of total admissions in 1992. Mr. Jay Cushman testified that the Medicaid commitment and record may be evaluated by comparing Good Samaritan to St. Mary's because they share a medical service area. Medicaid admissions to St. Mary's were 7.7 percent in 1985, 17.5 percent in 1989, 19.7 percent in 1990, and 32.0 percent in 1992. Therefore, as Mr. Cushman observed, the widening gap in the same service area is not indicative of Good Samaritan's historical record or present commitment to serve Medicaid patients. The District 9 plan also gives priority to applicants who propose to establish inpatient cardiac cath and open heart surgery services at the same facility when both are needed. The preference is inapplicable to the review of this application cycle, because no need was published for additional open heart surgery services in the district. There was testimony that Good Samaritan was, at the time of hearing, an applicant for an open heart surgery CON, having applied in March 1993, and had been preliminarily denied. The preference statement that an applicant "would not be expected to have to apply for both" describes the situation at the time of Good Samaritan's application. Therefore, the preference neither supports nor detracts from this application. The 1989 State Health Plan contains a similar preference for an applicant proposing both cardiac cath and open heart surgery services in response to a publication of the need for both. To have any practical effect in a comparative review process, avoiding speculation on the outcome of other pending administrative cases, the preference has to be understood to favor an applicant for cardiac cath and open heart surgery over an applicant for only cardiac cath in the same batching cycle. Therefore, the preference is inapplicable to this application for cardiac cath services, despite evidence of an open heart surgery application in a subsequent batching cycle. The state preference for the establishment of a new cardiac cath program in a county without such programs is not met. See, Findings of Fact 5. The state plan preference for disproportionate share charity care and Medicaid providers does not support approval of the Good Samaritan application. See, Finding of Facts 16, supra. The state preference for hospitals which accept patients regardless of ability to pay is met by Good Samaritan. On balance, there is no showing of the need for Good Samaritan's proposal to advance the special interests identified in the state and District 9 health plans. Good Samaritan argues that its inpatients should have access to its new, state-of-the-art cath lab to avoid costs and disruptions associated with unnecessary transfers. The argument is rejected as inconsistent with the regulatory scheme and need criteria established by statutes and rules. Testifying about AHCA's preliminary approval of Good Samaritan's application, Good Samaritan's expert, Ronald Luke, Ph.D., described the objective as improving access to care for the underserved, meaning uninsured, because ". . . there is no question - - no question - - that there is sufficient physical capacity in the market to perform the projected number of caths . . ." Transcript, Vol. 9, p. 1154. At hearing, David Musgrave, Good Samaritan's financial officer, and Dr. Luke asserted that Good Samaritan would perform caths on 100 more indigents than originally represented in the application. The application projected 3 percent indigent and 2 percent Medicaid payer categories. In the pro forma marked as exhibit 39, Good Samaritan projected 2.7 percent indigent care. There is no credible evidence to demonstrate that Good Samaritan can recruit an additional 100 indigent cardiac cath patients, through contacts with public health agencies. Utilization Projections Two major issues in dispute, which partially depend on the accuracy of utilization projections, are the requirements of Rule 59C-1.032(8)(b) that an applicant reasonably project 300 cath lab visits within two years of operation, and the long-term financial feasibility of the proposal. According to Dr. Luke, the 300 minimum annual procedures for a cath lab and 150 for invasive cardiologists who perform caths are standards set by the American College of Cardiology and American Heart Association Guidelines for Cardiac Catherization and Cardiac Catheterization Laboratories. The standards are set to insure that sufficient numbers of procedures are performed to maintain staff and cardiologists' proficiency. Good Samaritan's application includes projections of 270 caths in year one and 360 in year two. Initially, a minimum of 119 caths is reasonably expected, based on that number of inpatients transferred in 1992 from Good Samaritan for cath inpatient procedures at other hospitals. The experts for Good Samaritan compare its proposal to the operations of the cath lab at Boca Raton Community Hospital ("Boca Raton"), which has no open heart surgery services and a closed in-house cathing staff. A "closed staff" limits those who perform cath lab procedures to invasive cardiologists based at the facility. After opening in October 1987, Boca Raton has had the following number of cath procedures performed at its hospital: 1988 1989 1990 1991 1992 621 658 644 530 487 Like Boca Raton, Good Samaritan also proposes to have a closed lab. It will be headed by a hospital-employed physician. An agreement with the medical school at Duke University will allow the staff cathing physician to maintain the necessary personal clinical skills by performing sufficient numbers of additional procedures at Duke. Good Samaritan shares its medical staff and medical service area with St. Mary's. St. Mary's experts project that Good Samaritan would be another low volume provider in the area, primarily due to the lack of back-up open heart surgery services. Volumes of cath procedures reported at St. Mary's, which opened in February 1988, are as follows: 1988 1989 1990 1991 1992 229 292 323 381 359 St. Mary's has an open cathing staff. Its lab is used by a number of different invasive cardiologists, who also practice primarily at other hospitals which have open heart surgery services available. Palm Beach Gardens also has an open cardiac cath staff, although a number of the cathing physicians are based at the hospital. However, Palm Beach Gardens also has open heart surgery services. It's volumes from 1988-1992 were as follows: 1988 1989 1990 1991 1992 1598 1392 1587 1824 1750 Clearly, both the presence or absence of open heart surgery and the internal operations of a lab affect the volumes of procedures performed at any cardiac cath lab. The greater weight of the evidence suggests that the presence of open heart surgery is more determinative of cath lab utilization than the internal operations of the cath lab. Despite evidence of increasing use rates in District 9, Good Samaritan has failed to demonstrate that its projected utilization is reasonable. All of the growth in volume in Palm Beach County in 1992 is attributable to JFK Medical Center and Delray Community Hospital, both of which have open heart surgery and to Bethesda, with a new program in 1992 and 249 procedures. Declines in volume occurred at both mature inpatient programs without open heart surgery in Palm Beach County, St. Mary's and Boca Raton. The suggestion that 1992 is an aberration in this regard, is rejected. See, Findings of Facts 28 and 30. Impact On Existing Providers The highest reasonable expectation of volumes for St. Mary's cath lab in 1993 is 330 visits. From October 1, 1991 through September 30, 1992, Good Samaritan transferred 13 to 14 inpatients to St. Mary's for cardiac caths. Subsequently, in December 1992, a group of internists sold their practices to Good Samaritan. The patient volume of that group, one internist estimated, will result in the referral of 150 to 200 patients for cardiac caths over the next year or two. Based on their staff affiliations, it is reasonable to expect that a significant number of their referrals will be diverted from St. Mary's. One doctor in a group of invasive cardiologists, which has performed approximately 150 cardiac caths a year at St. Mary's, expects 75 to 90 of the cases would have been done at a Good Samaritan inpatient lab, if that alternative had existed. It is reasonable to expect that an inpatient cardiac cath program at Good Samaritan will result in a loss of up to 80 visits to the St. Mary's cath lab in 1995 and 1996. As a result, the St. Mary's program would be below 300 procedures (visits) a year minimum quality of care standard, with no assurance that Good Samaritan could exceed the standard. Good Samaritan describes the financial impact on St. Mary's of an inpatient cath lab as relatively insignificant, because the more detrimental impact will occur as a result of the already established outpatient lab. Good Samaritan estimates, however, that 70 percent of its cardiac cath patients will be inpatient and 30 percent will be outpatients. St. Mary's financial loss would be $188,000 if Good Samaritan reaches 480 procedures, according to Good Samaritan's expert. Good Samaritan concedes that St. Mary's is at risk of performing less than 300 procedures and, therefore, that the quality of care in the St. Mary's cath lab would decline. However, as Good Samaritan notes the decrease in volumes below 300 may occur whether or not Good Samaritan's proposal is approved. Cardiac cath volumes are declining at mature inpatient programs which do not have open heart surgery services. The establishment of a program at Good Samaritan would accelerate that trend at St. Mary's. See, Finding of Facts 33. When Good Samaritan's cardiac cath volumes reach 240 visits, Palm Beach Gardens expects to lose 44 cardiac cath visits and $134,000 pre-tax revenue in Good Samaritan's second and third year of operation. If, as projected by Good Samaritan, its volumes reached 480 visits, a loss of 88 cardiac caths or approximately $250,000 to $270,000 is projected. Good Samaritan contends that a loss of $250,000 to $270,000 pre-taxes for Palm Beach Gardens is relatively insubstantial. After taxes, the loss is $80,000 when Good Samaritan reaches 240 cases, or $160,000 if Good Samaritan reaches 480 cases. Revenues at Palm Beach Gardens, in 1992, were approximately $8 million pre-taxes, or $5 to $6 million after taxes. Good Samaritan's contention that the loss to Palm Beach Gardens is relatively insubstantial is supported by the evidence in this case. Financial Feasibility Good Samaritan has already constructed an outpatient cardiac cath lab, which is adequately staffed and capable of serving inpatients of the facility. The immediate financial feasibility of the proposal has been established. The long term financial feasibility of the program has been questioned. The pro forma attached to the application showed a loss of $126,008 in year one, a loss of $26,967 in year two and a gain of $113,224 in year three of operations. Good Samaritan was required to include a two year pro forma in its application. In fact, Palm Beach Gardens' expert believes that profitability must be demonstrated in the second year to establish financial feasibility. Good Samaritan's projections are based on the assumption that case volumes will be 240 cases in 1994, 360 in 1995 and 480 in 1996. The assumption that Good Samaritan can reach 360 procedures in year two, while St. Mary's remains over 300 procedures is rejected. In addition, Good Samaritan's pro forma is prepared as Good Samaritan acknowledges, on a fully allocated cost basis which cannot demonstrate financial feasibility. Good Samaritan's exhibit 39 was described as a sensitivity analysis, and is also based on only slight changes in utilization assumptions caused by rounding to whole numbers. Unlike the pro forma submitted with the application, exhibit 39 clearly is an incremental analysis. Good Samaritan failed to provide AHCA adequate evidence of financial feasibility based on the pro forma included in the application. Palm Beach Gardens asserts that consideration of exhibit 39 constitutes an impermissible, untimely amendment to the application which may not be relied upon to establish financial feasibility. Mr. Musgrave, an expert in hospital financial operations, acknowledged that the information in exhibit 39 was available at the time he prepared the application pro forma. Comparing the two, he testified that among the differences are the use of different data bases, a higher Medicare case weight, a lower managed care discount rate, higher gross charges per admission, and lower indigent care percentages. Good Samaritan also failed to account for certain capital costs. Good Samaritan claims that the project has no capital costs. The State Agency Action Report determined that the $5,000 filing fee is a capital cost. At hearing, there was expert testimony that expenses and equipment required to implement video-conferencing and other direct contacts with Duke University will result in additional costs which have not been adequately considered in Good Samaritan's financial analysis. Mr. Musgrave also testified that 70 percent of the cardiac cath volume is expected to be derived from inpatients, with capital cost reimbursements from Medicare and Medicaid. When asked about Good Samaritan's claim that there are no or minimal capital costs associated with the proposal, Robert P. Maquire of AHCA testified as follows: With regard to outpatient services that are approved by non-reviewability criteria, if later a project is established as an inpatient program and does not require any new construction, those costs - - there's no allocation of costs to the inpatient factor. Transcript, Vol. VIII, p. 1041.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that an order be entered denying the application of Good Samaritan Hospital, Inc. for Certificate of Need 7086 to establish an adult inpatient cardiac catheterization program. DONE AND ENTERED this 2nd day of November, 1994, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 2nd day of November, 1994.
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.
The Issue The issue for consideration in this matter is whether the Respondent's license as a chiropractic physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times relevant hereto, Joseph S. Maddox was licensed by the Board of Chiropractic to practice chiropractic in Florida. His Florida license number is CH0003204 (Exhibit 10). C.G. was a patient of Respondent during the period 1984-1988. In 1984, she presented to Respondent with pain in the coccyx. When external manipulation was unsuccessful in restoring the alignment in the tail bone, Respondent performed the adjustment through the vagina. Six months later, another internal coccyx adjustment was made, this time rectally. Both of these internal adjustments are accepted chiropractic techniques for coccyx realignment, but the rectal procedure is preferred because of fewer layers of tissue between inserted finger and coccyx and proximity to the coccyx. With respect to C.G., it is alleged that, for the purpose of attempting to engage the patient in sexual activity outside the scope of practice or examination, Respondent manually penetrated C.G.'s vagina, penetrated C.G.'s vagina with a vibrator device, manipulated C.G.'s breasts, asked the patient questions regarding her sex life and activities, and these activities occurred when Respondent was in a closed room with C.G. In 1986, C.G. had mammo-plasty reduction surgery. Before this surgery, she asked Respondent if the operation would alleviate her back pain. Respondent then examined her breasts and manipulated them. No evidence was presented that Respondent ever suggested having sex with C.B. Following this surgery there was some seepage from the wound, and while undergoing chiropractic treatment by Respondent, C.G. asked him to look at the wound. This is the occasion Respondent is alleged to have manipulated C.G.'s breasts. On several occasions, Respondent used a vibrator when giving chiropractic treatment to C.G. The vibrator was described by all witnesses as a portable machine with two handles and a rectangular vibrator pad approximately 10 inches by 4 inches. Although the Administrative Complaint alleges Respondent used the vibrator inside the patient's vagina, C.G. testified that during the course of the vibrator treatment Respondent allowed the vibrator to rest on her vaginal area, and he moved the vibrator over the vaginal area. C.G. also testified that Respondent used the vibrator for too long a period which was painful at the time and left her sore after the treatment was over. Between August 1987 and April 1988, C.G. leased space in Respondent's office facility in which she conducted her mental health counseling. During this period, she became close friends with Sara Chasse' who worked in Respondent's office for some three years before she was dismissed by Respondent. While occupying space at Respondent's office, C.G. used Respondent's staff to make appointments, answer the phone and perform other clerical services. C.G. is also an accredited professional astrologer (Exhibit 2) and prepared natal charts for Ms. Chasse' and Respondent's wife. K.T. first came to Respondent for an adjustment in late 1984. She has gone to chiropractors for thoracic problems dating back to childhood. In fact, K.T. has worked in a chiropractic setting for some 17 years and had formed her own company, Chiro Girls, to provide trained personnel to be employed by chiropractic clinics. At her first visit to Respondent's clinic, K.T. discussed with Respondent her ideas of how a chiropractic clinic should be run. K.T. was then employed to conduct a time motion study of the clinic operations and thereafter was employed under contract with Respondent as clinic director. K.T. considered her function at the clinic was to educate and motivate the clinic's staff. Friction developed between K.T. other employees and patients; and the contract was mutually dissolved some eight months later and well short of the year for which the contract was entered into. K.T. related a long history of menstrual cramps to Respondent which he treated with a vibrator. Respondent also queried K.T. regarding her sex life. Although K.T. deemed such questions inappropriate, a sexual history is appropriate to ascertain when treating female patients presenting symptoms of low back pain and dysmenorrhea (Exhibit 12). Further, use of a vibrator is appropriate when treating trigger points that can greatly intensify dysmenorrhea (Exhibit 13). Although K.T. testified that Respondent used a small, hand-held vibrator which he moved over her vaginal area and inserted in her vagina to induce her to climax, Respondent emphatically denies this; and nearly all other witnesses testified that the only vibrator used in the clinic was the large vibrator described in Exhibit 6. K.T.'s testimony that the vibrator treatment was very painful is more consistent with the use of the standard vibrator than with a smaller vibrator that could be inserted in a vagina. Accordingly, I find Respondent did not insert a vibrator into K.T.'s vagina. A.M.T. was treated by Respondent in 1980 when she was 15 years old. Initially she had back problems which were treated by adjustment and spine realignment. Between June and September 1980, A.M.T. worked in Respondent's clinic part-time. During this period A.M.T. developed coccygeal pain, and realignment of the coccyx was accomplished internally through the rectum. A.M.T. testified that Respondent rubbed her clitoris to relax her and discussed sexual techniques with her. She also testified Respondent's wife was in the treatment room while she was receiving therapy. A.M.T. thought the treatment she received was normal until she came in contact with a social services counselor in 1986 and then decided she had been abused by Respondent. When school started in September 1980, A.M.T. was unable to work at Respondent's clinic and get to school on time. Her need for treatment ended when she stopped working at the clinic. Respondent denies he rubbed A.M.T.'s clitoris or engaged in any unethical treatment of A.M.T; however, Respondent testified that he discussed sex with A.M.T. and her boyfriend at the request of A.M.T.'s mother. The mother denies asking for such a consultation with her daughter, and the boyfriend (now husband of A.M.T.) denies ever attending such a meeting. Since this alleged incident occurred approximately 10 years ago it is likely that none of the participants precisely recall what happened, but is more likely that Respondent's version of the sexual conversation with A.M.T. is inaccurate. However, Respondent's and his wife's attempts to justify sexual discussion with A.M.T. on the totally discredited basis that such discussion was requested by A.M.T.'s mother, leads to the conclusion that these discussions and treatments failed to comply with generally accepted standards of chiropractic treatment. Respondent treated M.W. with usual Chiropractic techniques for approximately one year for pain associated with muscular skeletal chassis stemming from a work-related back injury. At this time, Respondent's wife, Marty, was enrolled in massage school. After a discussion among the involved parties, it was agreed that Marty would practice massage on M.W. with Respondent present to point out the muscular skeletal anatomy. These treatments took place in Respondent's clinic in the evening well after the clinic had closed and were given at no cost to M.W. M.W. told Respondent that she experienced pain while having sex with her husband. He suggested vibrator treatment would help in this regard, and M.W. purchased a vibrator. M.W. testified that the massage therapy started on her neck and moved down her back and legs while she lay nude on the table. It is undisputed that the last evening M.W. received a massage she was alone in the clinic with Respondent. Marty was delayed and did not get to the clinic, so the massage was started by Respondent. During this massage a hand-held vibrator was used. M.W. testified Respondent moved it over her vaginal area and inserted the vibrator in her vagina. Respondent contends that M.W. requested he so use the vibrator on her. Both indicate that the other was the aggressor. Respondent acknowledged that he became sexually excited and testified M.W. put her hand on his penis. M.W. testified that Respondent put her hand on the front of his pants, and when he did so she got off the table, dressed and departed, never to return. Respondent testified that when M.W. grabbed him he realized the situation was getting out of hand and he left the room. When he returned, M.W. was dressed and was leaving. Even if Respondent's version of the incident is accepted as true, he voluntarily (if not intentionally) placed himself in an indefensible position and a factual situation that can lead only to the conclusion that he attempted to engage M.W. in sexual activity outside the scope of the practice of chiropractic. T.P. worked in Respondent's clinic for three months some five years ago and received chiropractic treatment from him. While undergoing activator adjustment the vibrator treatment approached the vaginal area, but T.P. inferred no sexual overtones in the procedure. When treated by Respondent she wore undergarments and considered his treatment similar to the other four or five chiropractors with whom she has worked. Sara Chasse' was a patient of Respondent for two years before being employed by him in 1984-1985 and again in 1986 until discharged in 1989. During her employment, she also received chiropractic treatment from Respondent. Chasse' was the back office assistant and was supposed to be in the room with Respondent when he was treating female patients. As the back office assistant she overheard the Respondent ask female patients questions about their sex life. No allegations were made in the Administrative Complaint regarding unprofessional or unethical treatment of Chasse' by Respondent; accordingly, most of her testimony regarding such treatment is irrelevant. Chasse' was a close friend of C.G. and M.W. and knew K.T. and T.P. She discussed with them the treatment they received from Respondent. Chasse' filed a complaint with the Department of Professional Regulation against Respondent and provided a list of patients treated by Respondent which included those who testified in these proceedings. All of the complaining witnesses testified that Respondent had them stand in front of a full length mirror clad only in bra and panties so he could demonstrate to them the results of the adjustments made during their treatment. They also testified that while they were in the room alone with Respondent the door was closed and sometimes locked. Other witnesses denied the door leading into an examination room was ever locked. Petitioner's expert witness opined that menstrual cycle problems are best left for treatment by an obstetrician/gynecologist; the use of a vibrator is not appropriate to relieve menstrual cramps; that it is not relevant to chiropractic when female patients last had intercourse; and that using a vibrator over and in the vagina, rubbing patient's clitoris, discussing your own sexual activities with patients, and having patients stand nude before a full length mirror constitutes a failure to practice chiropractic at a level of care, skill and treatment which is recognized by a reasonable prudent chiropractic physician as being acceptable under similar circumstances and/or constitutes an attempt to engage the patient in sexual activity outside the scope or practice or the scope of generally accepted examination or treatment of the patient. Respondent's expert witness opined that when a female patient presents with low back pain, a reasonable inquiry by the chiropractic physician would be the sexual practices of the patient; that the questions shown in Exhibit 12 are appropriate; and it is appropriate for a chiropractor to treat dysmenorrhea pain, and Exhibit 13 accurately depicts the trigger points; that use of vibrator is appropriate to treat the lower abdominal area of the patient; that there is no fixed standard in the practice of chiropractic whether the door to the examining room is open or closed (but not locked), nor is there a fixed standard of practice regarding the chiropractor having some staff member present when a patient is being examined. Both expert witnesses agreed that prudence demands the chiropractic physician have a staff member present in the examining room when sensitive area's of the patient are being manipulated and that neither intervaginal massage nor clitoral stimulation is an appropriate chiropractic procedure.
Recommendation It is recommended that Joseph S. Maddox be found guilty of Counts II, III and V, and not guilty of all other charges. It is further recommended that his license be suspended for a period of six (6) months, that he pay an administrative fine of $5000 and, upon completion of the suspension, be placed on probation under such terms and conditions as the Board deems appropriate, for a period of two years. ENTERED this 7th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990. APPENDIX Proposed findings submitted by the parties are generally accepted. Those not included in H.O.'s findings or not rejected as noted below, were deemed immaterial or unnecessary to the conclusions reached. Petitioner's Proposed Findings Rejected 10. Rejected. 12. Proposed finding that door was locked is rejected. 15. First sentence rejected as irrelevant to the charges. 21-24. Accepted as the testimony of K.T. insofar as inconsistent with H.O.'s 12, those findings are rejected. 27. Same as 15. 30. Rejected insofar as inconsistent with H.O. #17. Same as 15. Rejected as irrelevant. 40-41. Accepted only insofar as consistent with H.O. #20. 58. Rejected as irrelevant. 59-73. Are generally rejected as irrelevant and hearsay, insofar as inconsistent with H.O. #21 and not merely corroborating testimony of other witnesses whose treatments by Respondent were alleged to violate prescribed chiropractic standards. Respondent's Proposed Findings Rejected 6. Last sentence rejected. Other witnesses testified to use of small hand held vibrators. First sentence rejected. See H.O. #9. Rejected. K.T. testified that a small hand held vibrator was used on her the one time she was treated with a vibrator. She also testified that the treatment was very painful which would lead one to believe the large (10"x4") vibrator was used on pressure points. Rejected insofar as the improper touching of A.M.T.'s vaginal area is concerned. Rejected insofar as inconsistent with H.O. #16. Rejected. Rejected only insofar as it concludes that the uncalled for discussion of sexual techniques with a 15-year old female patient does not constiti1ite an attempt to engage the patient in sexual activity or malpractice. Last sentence is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Grover Freeman, Esquire Suite 500, 4600 Cypress Street Tampa, FL 33607 Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact At all times material here to, Respondent has been a chiropractic physician licensed under the laws of the State of Florida. Respondent placed the following ad, which appeared in the Miami Herald newspaper on Sunday, November 8, 1981, only: DRUGS? (note: A picture of Dr. is on the original document on file HEART PROBLEMS with the Clerk's Office.) HEADACHES Dr. Bob Bacher DIABETES Director HIGH BLOOD PRESSURE SKIN PROBLEMS 15.27 billion dollars spent in drug storeslast year. This does not include other sources, such as hospitals, clinics, etc; How can your lives be normal depending on drugs? To take a pill each day is dependency. Dependency is addiction. Pushed or prescribed you are an addict. Chiropractic can free you from drug dependency. Chiropractic finds the cause of sickness, corrects it, and allows the life within to heal the body. Come talk to us. We will tell you what you can do to get well and then it's up to you. \ALL CASES ACCEPTED REGARDLESS OF ABILITY TO PAY/ \ / We Accept: FREE X-RAYS Workers Compensation FOR MEDICARE PATIENTS Auto Accident Insurance $50-$100 Value When Necessary! Group Health Insurance Individual Health Insurance- Family Plan BACHER CHIROPRACTIC LIFE CENTER 9001 N.E. 2nd AVE. 756-LIFE CALL TODAY (5433) Some persons who have undergone chiropractic treatment and who have also suffered from the conditions listed in Respondent's advertisement have experienced, during the course of that treatment, some improvement in those conditions to the extent that some could reduce the medication taken for those conditions. The conditions listed in the ad encompass broad categories of diseases and include subcategories of those diseases for which a person must take medication in order to live. In a number of the diseased states listed, the medications being taken are not optional but rather are life-saving. The ad fails to distinguish among persons taking a daily multi-vitamin pill, persons requiring medication to remain alive due to some genetic defect, and persons addicted to illegal drugs for recreational purposes. The words "pill," "medication," and "drugs" are interchangeable only sometimes. A person can take a pill each day without being dependent or addicted. The words "dependency" and "addiction" mean the same thing to some medical professionals only. Many kinds of heart problems, headaches, diabetes, high blood pressure, and skin problems have never shown a response to chiropractic care alone, and there is no scientific or medical data showing that chiropractic treatment can curtail or eliminate the use of prescribed medication in all of the listed conditions. The implication of the ad, read in its entirety, is that every person who has the listed conditions can be helped by chiropractic and can be taken off pills/drugs/medication. Chiropractic does not have a high success rate of freeing people from drug dependency. Respondent's advertisement has the ability to endanger the health of the public for two reasons. First, persons may cease taking life-sustaining medication simply because they have gone to a chiropractor. Second, in situations involving true addiction to certain drugs, it is necessary that any attempts by the person addicted to withdraw from use of that drug be made only under the supervision of a medical doctor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of each and every allegation contained within the Administrative Complaint and assessing against him an administrative fine of $1,000 to be paid by a date certain. DONE and RECOMMENDED this 25th day of July, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 25th day of July, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lawrence M. Malman, Esquire Biscayne Building, Suite 412 19 West Flagler Street Miami, Florida 33130 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Petitioner is entitled to additional credit for the answer he gave in response to Question 21 on the physical diagnosis portion of the November 1999 chiropractic licensure examination.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1999. The practical examination consisted of three parts: "technique," "physical diagnosis," and "x-ray interpretation." The minimum passing score for each part was 75. Petitioner passed the "technique" and "x-ray interpretation" portions of the examination; however, he failed the "physical diagnosis" portion of the examination (PD Test), with a score of 68. On this portion of the examination, candidates demonstrated their knowledge of "physical diagnosis" by responding to test questions, in the presence of two examiners, verbally and/or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the two examiners' scores. Prior to the administration of the PD Test, all examiners were provided with instructions regarding their role in the examination process and the standards they should follow in grading the candidates' performance. Candidates were provided with a Candidate Information Booklet (CIB) in advance of the licensure examination. Among other things, the CIB listed, by category ("acupuncture," "physical diagnosis," "technique," and "x-ray") reference materials that could "be used to prepare for the examination." The list was preceded by the following advisement: The list is not to be considered all- inclusive. Thus, other comparable texts may be used to prepare for the examination. Under the category of "x-ray" the following "references" were listed: Eisenburg, Gastrointestinal Radiology- A Pattern Approach, Hagerstown, MD: Lippencott, Second Edition, 1989. Paul & Juhl, Essentials of Radiologic Imaging, Hagerstown, MD, Lippencott, Sixth edition, 1993. Taveras & Ferrucci, Radiology: Diagnosis- Imaging-Intervention, Hagerstown, MD: Lippencott, 1986. Five-volume set, loose- leaf renewed in July 1994. Yocum, T. R., & Rowe, L. J., Essentials of Skeletal Radiology, Baltimore: Williams & Wilkins, First Edition 1986. Not on the list under "x-ray" or under any other category was Dr. Robert Percuoco's Radiographic Positioning for the Chiropractor (Dr. Percuoco's Publication), the text book used by Dr. Percuoco in the radiology classes he teaches at the Palmer College of Chiropractic in Davenport, Iowa (Palmer). Palmer was the nation's first college of chiropractic, and is accredited by the Council of Chiropractic Education. Petitioner graduated from Palmer and was taught radiology by Dr. Percuoco. Question 21 on the PD Test was an eight-point "diagnostic imaging" question (with no provision for partial credit) that asked the candidates to "demonstrate a Lateral Thoracic view." Among the six items the candidates had to address in answering the question was the central ray. Page 54 of the Dr. Percuoco's Publication describes what, according to the author, needs to be done to obtain a view of the lateral thoracic spine. It provides, in pertinent part, as follows (Dr. Percuoco's Approach): Center the central ray to the film. The vertical portion of the central ray should pass posterior to the head of the humeri. In responding to Question 21 on the PD Test, Petitioner relied on the foregoing excerpt from Dr. Percuoco's Publication. He told the examiners that the central ray should be centered to the film and that the vertical portion of the central ray should pass one inch posterior to the head of the humerus. The two examiners evaluating his performance both gave Petitioner an "A" (or no points) for his response to Question 21. In so doing, they acted reasonably and in accordance with the grading instructions they had received prior to the administration of the PD Test. Dr. Percuoco's Approach (upon which Petitioner relied) is not generally accepted in the chiropractic community. A reasonably prudent chiropractor, in taking an x-ray of the lateral thoracic spine, would do what was necessary to have the central ray pass, not "posterior to the head of the humeri," but "approximately 3 inches inferior to [the] sternal angle," as Drs. Yocum and Rowe, two of the most respected radiologists in the country today, instruct in their text, Essentials of Skeletal Radiology, which was one of the reference materials listed in the CIB (Dr. Yocum's and Dr. Rowe's Approach). Dr. Yocum's and Dr. Rowe's Approach yields a more exact and complete view of the lateral thoracic spine than does Dr. Percuoco's Approach. Because Petitioner failed to incorporate Dr. Yocum's and Dr. Rowe's Approach in his response to Question 21, the examiners were justified in determining that Petitioner did not answer all six parts of the question correctly and that he therefore should be awarded an "A" (or no points) for his response.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the physical diagnosis portion of the November 1999 chiropractic licensure examination. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2000.
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
