The Issue At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task 4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis. Dr. Densmore admitted that many doctors order these tests as a general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur." The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response, intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received. Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of 70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 18th day of February, 2002. COPIES FURNISHED: Ken Allan Niebrugge 4785 Barkley Circle No. 22 Fort Myers, Florida 33907 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent, Richard Powers, was at all times material hereto a licensed chiropractor in the State of Florida, having been issued license number CH0003372. Respondent has routinely advertised his chiropractic practice in the Palm Beach Post. On July 8, 1984, July 15, 1984, and September 2, 1984, Respondent ran an advertisement in the Palm Beach Post which offered a free examination and which stated that the "usual value of this exam is $80. This includes X-rays if needed." The advertisement did not include the disclaimer mandated by Section 455.24, Florida Statutes. That statute, effective June 12, 1984, required that: In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider ... (such as Respondent) ... the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. By memorandum dated September 30, 1984, the Department of Professional Regulation, Board of Chiropractic (Board), advised all licensees of the aforesaid amendment to section 455.24. Respondent asserts he had no knowledge of the amendment until his receipt of the Board's memorandum in October, 1984, and that he complied, or attempted to comply, with the amendment at all times thereafter. The evidence supports Respondent's assertions. The advertisements of July 8, 1984, and July 15, 1984, were captioned in bold type "ADVANCED APPLIED CHIROPRACTIC," listed Respondent as a diplomate of the National Board of Chiropractic, and concluded in bold type "A STANDARD OF EXCELLENCE." The advertisement of September 2, 1984, touted Respondent's clinic as "Advanced Applied Chiropractic and Comprehensive Pain Center." The generally accepted definition within the medical community of diplomate is an individual who has completed an extensive post graduate program and successfully passed the board's examination. This establishes superior qualifications in the individual's field of practice. Although the National Board of Chiropractic issues diplomate certification to those individuals who pass its examination, its examination is a basic licensing examination which establishes minimal competency, not excellence. Respondent's use of the phrase "Advanced Applied Chiropractic" to describe his clinic implies that he possesses skills superior to the average chiropractor. Respondent has registered the phrase "Advanced Applied Chiropractic" as a fictitious name. Respondent was, on one prior occasion, disciplined by the Board for an advertising violation.
Findings Of Fact In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
Findings Of Fact At all times relevant hereto, the Respondent, Michael F. Petrie, was licensed as a chiropractic physician by the Florida Board of Chiropractic. The Petitioner introduced no evidence relating to Count I of the Administrative Complaint. On or about February 3, 1982, the Respondent placed an advertisement in the Pompano Shopper's Guide, advertising the Petrie Chiropractic Life Center. (See Joint Exhibit 1.) This advertisement states, in pertinent part, ". . . To take a pill or more each day is dependency. Dependency is addiction! Whether these drugs are pushed or prescribed, you are an addict! CHIROPRACTIC can many times free you from drug dependency. . ." The advertisement makes reference to specific medical conditions, such as headaches, diabetes, stroke, high blood pressure and skin problems, which can be helped by chiropractic treatment. The testimony of Kenneth C. Lasseter, M. D., was offered via deposition as Petitioner's Exhibit 2. Dr. Lasseter stated his professional opinion that dependency on a drug is not the same as addiction. Drs. Michael Nathanson, Thomas Pasterski and Richard Hodish, all of whom are doctors of chiropractic and were accepted as experts in this field, testified that addiction and dependency are synonymous. (See Transcript, pages 48, 49, 95 and 101.) Their testimony was further substantiated by the definitions of addiction and dependency as found in the Encyclopedia and Dictionary of Medical and Nursing. Joyce Quintavalli, R. N., a psychiatric nurse specializing in the treatment of young people for drug problems, stated that from the practical standpoint there was no difference between dependency and addiction. Dependency and addiction are synonymous. Robert S. Butler, Jr., D. C., who was accepted as an expert in chiropractic, testified that the advertisement indicated that the Respondent's treatment could reduce a patient's need for medication for the enumerated conditions or illnesses and therefore opined that the advertisement was misleading. However, Dr. Butler stated that the medical conditions enumerated in the advertisement fall within the scope of practice of chiropractic, that chiropractic can treat patients for these problems with good results, and that treatment can lessen or free the patient from drug dependency. Dr. Butler stated his concern that the advertisement could encourage people to stop their medications, although he admitted that the advertisement does not urge or recommend to people that they cease taking medication. The chiropractic physicians enumerated in Paragraph 5 above testified that the conditions enumerated in the advertisement were within the scope of treatment of chiropractic, that they had treated patients for these diseases or conditions with good results, and that as a result of treatment their patients had reduced or ceased altogether taking medication which had been necessary prior to their treatment for control of their condition. The statements made in the advertisement are accurate and do not mislead the public concerning the scope of chiropractic, the benefits of chiropractic, or the Respondent's qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against Michael F. Petrie be dismissed. DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael F. Petrie, D. C. 410 NE 44th Street Fort Lauderdale, Florida 33334 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether 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 At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." Also at issue is whether, as contended by Respondent, there is "a complete absence of a justiciable issue of either law or fact raised by [Petitioner's claim]" and, therefore, Respondent should be awarded attorney's fees and costs pursuant to Section 57.105, Florida Statutes.
Findings Of Fact Finding related to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Chiropractic (Department), is a state agency charged with the duty and responsibility for regulating the practice of chiropractic pursuant to Section 20.43 and Chapters 455 and 460, Florida Statutes.3 At all times material hereto, Petitioner, Robert Frankl, D.C. (Dr. Frankl), was licensed to practice chiropractic in the State of Florida, having been issued license number CH 0002560. On August 6, 1997, the Department filed a two-count Administrative Complaint against Dr. Frankl (agency case number 94-20261). Count I charged Dr. Frankl violated Subsection 460.413(l)(m), Florida Statutes, by failing to keep written chiropractic records justifying the course of treatment of a patient, including patient histories, examination results, test results, X-rays, diagnosis of a disease, condition or injury. Count II charged Dr. Frankl violated Subsection 460.413(l)(v), Florida Statutes, by violating Rule 59N-17.0065(2), Florida Administrative Code, which requires that adequate patient records be legibly maintained, and that initial and follow-up services (daily notes) shall consist of documentation to justify care. For such violations, the Department proposed that one or more of the following penalties be imposed: . . . suspension of . . . [Dr. Frankl's] license, restriction of . . . [Dr. Frankl's] practice, imposition of an administrative fine, issuance of a reprimand, placement of . . . [Dr. Frankl] on probation, and/or any other relief that the Board [of Chiropractic] deems appropriate. Dr. Frankl disputed the allegations of fact contained in the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing. The matter was assigned DOAH Case No. 97-4109, and a hearing was duly scheduled for December 17, 1997. Shortly prior to hearing, the Department filed a motion to relinquish jurisdiction that was denied by the administrative law judge. Pertinent to this case, the reaction of Dr. Frankl's counsel to the Department's maneuver was memorialized in a letter of November 20, 1997, from Dr. Frankl's counsel to the Department's counsel, as follows: This letter will confirm our telephone conversation of today in which you advised me that the Administrative Law Judge denied the AHCA's Motion to Relinquish Jurisdiction. At this point you are contemplating whether or not to voluntarily dismiss Count I and II of the Administrative Complaint. Thereafter, the AHCA may decide to re-charge Dr. Frankl if the Chiropractic Probable Cause Panel finds cause after re-reviewing this case. In the event that the AHCA recommends that this case be re-presented to the Probable Cause Panel for purposes of re-charging him, please be advised that Dr. Frankl will be prosecuting the AHCA and/or the Chiropractic Probable Cause Panel for attorney's fees especially given the potential dismissal of the pending charges against him. Dr. Frankl is willing to waive his claim for attorney's fees if the AHCA and/or the Panel consider immediate dismissal with prejudice of any and all charges arising out of this matter, including the charges alleged in the investigative report. From the beginning of the Panel's investigation of Dr. Frankl almost two years ago, they would have certainly pursued all potential violations against him for purposes of bringing the subsequent Administrative Complaint. Notwithstanding their investigation of all potential violations against Dr. Frankl, as identified in their investigative report, the AHCA chose only to prosecute two of those charges in the form of a two count Administrative Complaint against him. Certainly at that time counsel for the AHCA would have been aware of all of the charges in the investigative report when they filed the two count Complaint against him. By counsel for the AHCA's own actions in prosecuting only these two charges in the Complaint and not the remainder of the charges in the investigative report proves that the remaining allegations in the report are meritless (even though the AHCA would like to now have these same charges re- presented to the Probable Cause Panel for purposes of potentially re-charging him). Dr. Frankl has had to spend considerable monies, time, costs and attorney's fees in defending this matter. The situation is tantamount to a witch hunt by the Panel to find anything to hang over Dr. Frankl's head. Further, the last minute attempts by the AHCA on the eve of trial, presently set for December 17, 1997, to have the Judge relinquish jurisdiction because they realized the counts were meritless in view of their own experts' reports proves that the Panel and/or the State seek to prolong the process and harass Dr. Frankl and thereby deny him his day-in-court to defend these charges and bring this matter to a final resolution. Subsequently, counsel for the Department and counsel for Dr. Frankl reached an agreement whereby counsel for the Department would recommend to the Board of Chiropractic that the investigation against Dr. Frankl be closed. In exchange, Dr. Frankl, through counsel, agreed, provided the investigation was closed, to waive any action for attorney's fees related to the case. The parties agreement was memorialized in a letter, dated December 19, 1997, from Dr. Frankl's counsel to the Department's counsel, as follows: Pursuant to our telephone conversation of Friday, December 19, 1997 this letter will confirm that upon your recommendation to the Probable Cause Panel of the Board of Chiropractic on Monday, December 22, 1997 at 12:30 p.m. that you will be requesting on behalf of AHCA that the instant investigation in regards to Dr. Frankl be closed (given the Voluntary Dismissal)4[.] Dr. Frankl, in turn, agrees to waive any action for attorneys' fees related to this case so long as the Probable Cause Panel elects to close their investigation against Dr. Frankl on December 19, 1997 (sic) [December 22, 1997] at the hearing. A memorandum of the Probable Cause Panel, Board of Chiropractic, for the Probable Cause Panel meeting of December 22, 1997, notes that the panel resolved that "PROBABLE CAUSE WAS NOT FOUND IN THIS CASE." (Respondent's Exhibit 3.) That finding resulted in the entry of a formal "CLOSING ORDER" on January 16, 1998, which provided: THE COMPLAINT: The Complaint alleges that the Subject is in violation of Section 460.413(l)(m), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of the patient. THE FACTS: On or about June 18, 1995, Patients A.M. and J.M. voluntarily withdrew their complaint against the Subject; and stated that no violations occurred. On or about November 7, 1995, an Agency expert opined that the Subject's records on Patients A.M. and J.M. contain "adequate initial history and examination records" and "they seem to correspond with dates of services as are noted in billings." On or about April 3, 1996, probable cause was found that a violation of Section 460.413(l)(m), Florida Statutes, occurred. On or about April 4, 1997, another Agency expert opined "that legible written chiropractic records were kept on both patients J.M. and A.M. justifying treatment." THE LAW: Based on the foregoing, although probable cause had previously been found by the panel to exist, in light of the foregoing, the case shall be dismissed. It is, therefore, ORDERED that this matter be, and the same is hereby, DISMISSED. Findings relating to Dr. Frankl's claim for attorney's fees and costs under Section 57.111, Florida Statutes Pertinent to Dr. Frankl's claim for attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Frankl prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs would be appropriate provided Dr. Frankl can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust. Addressing first Dr. Frankl's status, the proof demonstrates that at the time the underlying proceeding was initiated, and at all other times material hereto, Dr. Frankl practiced chiropractic through a professional service corporation, as authorized by Chapter 621, Florida Statutes. The principal (sole) office of the corporation was located in Hollywood, Florida, and at the time the underlying action was initiated by the Department, the corporation had not more than 25 full-time employees or a net worth of not more than two million dollars. Dr. Frankl was, and continues to be, the sole owner of the corporation. Given the proof, for reasons more fully stated in the Conclusions of Law, Dr. Frankl was not a "small business party," as defined by law, when the underlying proceeding was initiated.5 As for the reasonableness of the attorney's fees and costs claimed, it is observed that, with regard to attorney's fees, Dr. Frankl offered no proof that any attorney time or fee was incurred in the underlying proceeding. Consequently, there is no record basis upon which to assess a reasonable fee. Standard Guarantee Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994). With regard to costs, Dr. Frankl did offer testimony that, at the attorney's request, he provided his attorney in the underlying case with four copies of his office file at a cost of $118. There was, however, no showing as to why the documents were requested (their need), and, therefore, no showing that the costs were necessarily incurred. Fundamentally, copying costs are generally not recoverable, and there was no showing in the instant case that Dr. Frankl's claim met any recognized exception.6 Florida Rules of Court, Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Findings relating to the Department's claim for attorney's fees and costs under Section 57.105, Florida Statutes Pertinent to the Department's claim for attorney's fees and costs under Section 57.105, Florida Statutes, the Department claims that there was a complete absence of any justiciable issue of law or fact to support Dr. Frankl's claim or application for an award of attorney's fees and costs under Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." The gravamen of the Department's position is its contention that, as evidenced by the letter (of December 19, 1997) from Dr. Frankl's counsel, he waived any claim for attorney's fees and costs when the Probable Cause Panel of the Board of Chiropractic closed their investigation (dismissed the case). In contrast, Dr. Frankl contends that there was never an agreement to waive costs. As for the waiver of attorney's fees, Dr. Frankl contended: . . . It is not clear whether the probable cause panel meeting at which the referenced case was reconsidered and closed was held on December 22, 1997. The minutes of the meeting reference both "December 22, 1997" and "Tuesday, December 23, 1997". The tape recording of the referenced reconsideration maintained by the Board of Chiropractic does not reference a date upon which the meeting was held. Dr. Frankl agrees that if the panel voted to close the case on December 22, 1997, he has agreed to waive attorney fees.7 (Emphasis in original.) Addressing first the issue of attorney's fees, the only proof of record reflects that, at the Probable Cause Panel meeting of December 22, 1997, the Panel voted no probable cause or, stated differently, to close the case. Consequently, by the terms of their agreement, Dr. Frankl waived any claim for attorney's fees. Moreover, whether the Panel had voted on December 23, 1997, as opposed to December 22, 1997, to close the case is immaterial or, stated differently, a distinction without a meaningful difference. Consequently, Dr. Frankl's claim for attorney's fees was lacking any justiciable issue of law or fact. While Dr. Frankl's claim lacked merit with regard to his claim for attorney's fees, the same cannot be said for his claim for costs. In this regard, it is observed that while the Department alleged the waiver was for attorney's fees and costs, the parties agreement (as evidenced by the letter of December 19, 1997) states otherwise, and the Department offered no proof that the parties intent was other than that evident from the express language of the parties' agreement. Given the foregoing, it must be concluded that the Department failed to demonstrate that Dr. Frankl's claim was entirely without merit. More importantly, for reasons appearing in the Conclusions of Law, the Department was not, as a matter of law, entitled to attorney's fees under the provisions of Section 57.105, Florida Statutes. Finally, like Dr. Frankl, the Department failed to present competent proof to demonstrate what attorney's fees, if any, were necessarily and reasonably incurred.8
Findings Of Fact At all pertinent times, the Respondent Karl Cohen was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about September 5, 1976, Maxine Grebin sustained injuries in a roller skating accident. Mrs. Grebin sought treatment from the Respondent on September 24, 1976, and her treatment continued through December 3, 1976. Thereafter, Mrs. Grebin instituted a civil proceeding against Gold Coast Roller Rink. During the pendency of the civil suit, Mrs. Grebin requested that the Respondent provide her or her attorney an itemized statement of the services rendered for purposes of the damages suit. Mrs. Grebin never received an itemized statement from the Respondent. On February 14, 1977, the Respondent mailed a bill and report to Mrs. Grebin's attorney and copy of the bill to Mr. Joel Grebin, the complainant in this case, on March 11, 1977. When the Respondent failed to receive payment for services rendered by him to Mrs. Grebin, he filed suit in Dade County and after a trial, at which the Grebins appeared, received a final judgment on May 4, 1981, for $388 plus costs. On September 25, 1981, the Respondent was visited at his office by Martin Brandies, a Department investigator. The Respondent furnished Brandies with his entire file concerning Maxine Grebin, and made copies of pertinent documents for him. Subsequently, on June 22, 1982, the Respondent was served with a subpoena by John McDonough, investigator for the Department. The documents requested were virtually identical to the documents previously provided to Brandies. 1/ Since the documents were previously voluntarily provided to the Department, the Respondent did not believe that he was required to furnish a second set of documents, and accordingly, did not comply with the subpoena duces tecum. At the hearing on February 8, 1983, the Petitioner moved to amend Count II of the Administrative Complaint to charge a violation of Section 460.413(1)(n), Florida Statutes, rather than Section 460.413(1)(h), Florida Statutes. The motion to amend was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Board of Chiropractic enter a Final Order finding the Respondent guilty of violating Section 460.413(1)(w), Florida Statutes, and imposing a reprimand pursuant to Section 460.413(2), Florida Statutes DONE and ENTERED this 16th day of January 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of January 1984.
