The Issue The issues in this case are whether Respondent, Robert Paul Catanese, D.C., violated Section 456.072(1)(c), Florida Statutes (2001)-(2006), and Section 560.413(1)(c), Florida Statutes (2001)-(2006), as alleged in the Administrative Complaint, filed by Petitioner, the Department of Health, on January 23, 2007, in DOH Case Number 2006-03224, and subsequently amended; and, if so, what disciplinary action should be taken against his license to practice chiropractic medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving chiropractic physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 460, Fla. Stat. (2006). Respondent, Robert Paul Catanese, D.C., is, and was at all times material to this matter, a chiropractic physician licensed to practice medicine in Florida pursuant to Chapter 460, Florida Statutes. The Indictment and Conviction. On or about February 2, 2006, Dr. Catanese was indicted in United States of America v. Joseph Sutera, Eric Ressner, Agustin Castellanos, Robert Catanese, and Stephanie Mirante, United States District Court, Southern District of Florida, Case No. 06-80020 CR, (hereinafter referred to as the "Indictment"). Dr. Catanese was charged with conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 371. Generally, the indictment alleges that Dr. Catanese, between June 2001 and September 2005, transferred private health insurance information concerning his patients to a co- conspirator, Joseph Sutera, knowing that the information would be used to submit false and fraudulent claims for reimbursements for Ketamine and other prescription medications. As it relates to Dr. Catanese, the indictment was predicated upon the following allegations of “Background” fact: Defendant ROBERT CATANESE was a licensed doctor of chiropractic and the owner Catanese Chiropractic Center, a clinic through which he offered chiropractic services and through which he employed licensed physicians, including defendant AUGUSTIN CASTELLANOS, to write prescriptions and provide other medical services for his patients. Count One of the Indictment charges Dr. Catanese with conspiracy in violation of 18 U.S.C., § 347, alleging the following facts: . . . . 22. Defendant ROBERT CATANESE transferred the private health insurance information of his patients to defendant JOSEPH SUTERA knowing the information would be used to submit false and fraudulent prescription drug claims for Ketamine HCL and other prescription medications through The Medicine Shoppe to The Private Health Insurance Companies. . . . . 30. Defendant ROBERT CATANESE received approximately $31,000 in the form of checks and additional amounts in cash from defendant JOSEPH SUTERA and The Medicine Shoppe which represented proceeds from the payments received from false and fraudulent prescription drug claims. . . . . On or about December 23, 2005, Dr. Catanese signed a Plea Agreement in which he agreed to plead guilty to one count of conspiracy, “in violation of Title 18, United States Code, Section 371, an object of which was to commit health care fraud, in violation of Title 18, United States Code, Section 1347.” On or about July 24, 2006, consistent with his Plea Agreement, Dr. Catanese pled guilty to one count of conspiracy to commit health care fraud. During the plea hearing, the prosecutor described the factual basis for the plea as it relates to Dr. Catanese as follows: Yes, Your Honor, had this gone to trial the Government would prove beyond a reasonable doubt that in or between June 2001 and September 2005, Palm Beach Gardens, Florida, Palm Beach County within the Southern District of Florida and elsewhere the defendants Joseph Sutera, Robert Catanese, Agustin Castellanos and others, Eric Ressner and Stephanie Mirante knowingly conspired to commit health care fraud through false and fraudulent prescription drug claims for the purpose of enriching or otherwise benefiting themselves. The Government would prove that Joseph Sutera was a licensed pharmacist. As a licensed pharmacist, although he was licensed to dispense medication, he was not authorized to prescribe prescription medication including compounds, creams or other substances and was not authorized to dispense any prescription medications without a valid prescription from a licensed physician, prescription medications because of their toxicity and potential harmful effects deemed not for use to administer such drugs. Augustine Castellanos was a medical doctor specializing in neurology and sleep disorders. Dr. Catanese was a doctor of chiropractic, and owner of Catanese Chiropractic Center. He employed Agustin Castellanos. His job was to write prescriptions and provide medical services for his chiropractic patients. Mr. Sutera owned and operated a retail pharmacy called The Medicine Shoppe. It was a franchise which was located [at] 3365 Burns road in Palm Beach Gardens, Florida. Through this pharmacy, Mr. Sutera submitted thousands of insurance claims to approximately 200 private health insurance companies, and these claims were false in that they were for prescription medications that were not prescribed, not requested, and, in many cases, not delivered. Although these claims were for virtually every type medication that there is, the majority were for medications for which there was a high reimbursable from the insurance costs. These included things such as pain patches, a certain cancer drug called Levac, and claims for a drug called Ketamine. Ketamine is a Schedule III controlled substance controlled by the Drug Enforcement Administration. It is a prescription medication most often used as an anesthetic for children and as a battle field anesthetic in adults. It produces dissociative effect, for battle field purposes, when a limb is being taken off that is a good thing. Dissociative effect makes it popular for illicit purposes. It has become popular for a club drug, where it is used for purposes of getting high, so to speak. In addition to these uses, the drug recently has also been found to have some pain applications and Mr. Sutera as a pharmacist helped develop a cream that had as its main ingredient Ketamine. He distributed this cream under a number of different names, including formula 2 and Ketazone. What was attractive about this cream for insurance fraud purposes, was that the reimbursement for the jars of the cream or the tubes of the cream was rather high and could be as much as $1,000 per claim. In order to submit these claims, however, Mr. Sutera needed at least two things. He needed patient information. He needed names, addresses, and health insurance information for particular individuals, and he also needed the names of doctors who could be listed as the prescribing physicians. It was important that, particularly, the doctors have some knowledge of what was happening because the private health insurance companies would regularly audit the distribution of drugs from the pharmacy and would send out letters to the prescribing physicians asking if, in fact, they had prescribed certain medications. . . . . For purposes of getting the patient health information, Mr. Sutera did that in a number of different ways. . . . . . . . In addition to that, on at least three different occasions, Dr. Catanese who ran a chiropractic clinic as Your Honor is aware sold his patient list to Mr. Sutera. When I say he sold his patient list to Mr. Sutera, he sold all of the patient lists and, in exchange, Mr. Sutera agreed to give Dr. Catanese $100 per jar of the cream that was being prescribed by doctors through, Catanese’s clinic. Dr. Catanese was aware at the time that, in fact, these names were going to be used to submit false claims, as well as, for the submission of any claims for patients that really did get the cream. The quid pro quo, if you will, was at the time, Dr. Catanese had a drug problem as Your Honor is aware, and Mr. Sutera provided him with large amounts of Percocet. In addition to that, Mr. Sutera also provided Dr. Catanese with cash and with at least $31,000 in money in the form of checks, as well. . . . . The presiding judge specifically asked Dr. Catanese about his involvement in the acts described by the prosecutor: BY THE COURT: Q. Dr. Catanese, would you come to the lectern. Let me pose these questions to you. You had an opportunity to listen to what Ms. Bell had to say as pertains to your involvement. Do you agree you did and said the various things Ms. Bell suggested A. Yes, Your Honor. Q. Now, again, and I know you listened, and I am sure this is a matter of enormous concern to you, but this crime because the punishment is potentially longer than one year in jail, it is classified as a felony offense. If the court concludes that you really know what you are doing, that you are making a voluntary and informed decision, what I would do is accept your plea, you see, and adjudicate you to be guilty. The moment that happens, you are then classified as a convicted felon, and, of course, you will automatically lose those valuable civil rights, the right to vote, the right to possess a firearm or serve on a jury or run for public office. Do you understand you will lose those civil rights? A. Yes, sir. Q. Now, again, I would imagine this also would have an impact on your medical license. Do you understand that as well? A. Yes, sir. Q. Knowing and understanding these things, I want to indicate I certainly have had an opportunity to observe you and talk with you. You are a highly intelligent person. I am satisfied you are competent to make the decision that you are thinking about making. We’ve gone through the rights of trial by jury and all those other rights. We’ve gone through all of the provisions of the plea agreement. Is there anything out there I haven’t touched on, any questions or concerns you have that you wanted to raise? A. Not at this time, Your Honor. Is it your desire, then, to continue forward and enter the pleas we have been discussing? A. Yes, sir. THE COURT: Mr. Lubin, would you do that for the doctor? MR. LUBIN: Yes, Your Honor. On behalf of Robert Catanese, we would withdraw previously entered plea of not guilty and enter a plea of guilty to Count 1 which is the conspiracy count. THE COURT: Doctor, is that what you want to do? THE DEFENDANT: Yes, sir. THE COURT: 06-80020, United States versus Robert Catanese, it is the finding of the court that Dr. Catanese is fully competent and capable of entering an informed plea. I find his plea is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of this particular offense, therefore, I accept the doctor’s plea and I now adjudicate him to be guilty of the crime of having knowingly and willfully conspired to commit health care fraud in violation of Title 18, United States Code, Section 371. On November 7, 2006, United States District Judge Daniel T.K. Hurley adjudicated Dr. Catanese guilty of one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 371, a felony. Judge Hurley sentenced Dr. Catanese to serve 40 months imprisonment, followed by three years of supervised release, and required that he forfeit $31,000.00. The Relationship of Dr. Catanese's Convictions to the Practice of Medicine. In light of Dr. Catanese’s guilty plea to Count One of the indictment and his agreement with the prosecutor’s summary of the factual basis for his plea, it is concluded that Dr. Catanese engaged in the activities alleged in the indictment and summarized by the prosecutor for purposes of this proceeding. All of those activities related to the practice of chiropractic medicine. But for Dr. Catanese’s license to practice chiropractic medicine in Florida, Dr. Catanese would not have been able to commit the crime for which he was found guilty. It was his license to practice chiropractic medicine that facilitated his ability to open the Catanese Chiropractic Clinic and to obtain the private health insurance information of his patients which was provided to his co-conspirator for use in committing health care fraud. The crime for which Dr. Catanese was convicted is a crime that “directly relates to the practice of chiropractic medicine.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Chiropractic Medicine finding that Robert Paul Catanese, D.C., has violated Sections 456.072(1)(c), and 460.413(1)(c), Florida Statutes, as described in this Recommended Order; and imposing discipline consistent with the Board’s guidelines after giving Dr. Catanese an opportunity to address any additional mitigating factors which he wishes to present to the Board. DONE AND ENTERED this 19th day of December, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2007. COPIES FURNISHED: Tobey Schultz, Esquire Office of General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Robert Paul Cantanese #75488-004 Federal Correctional Institution Miami Post Office Box 779800 Miami, Florida 33177 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The parties have stipulated to the facts in this case as follows: The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County. The advertisement was published on September 16, 1987. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center". The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..." Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control". Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1991. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive Suite 177 Laguna Niguel, CA. 92677-2040 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent committed the allegations contained in the Corrected Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed chiropractic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Chiropractic Medicine has found probable cause to suspect that the chiropractic physician has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a chiropractic physician licensed in the State of Florida, having been issued license number CH 2363. Background / Arrangement with Dr. Wagner In or around 1975, Respondent completed his training at the National University of Health Sciences and began to practice chiropractic medicine shortly thereafter. Some 15 years later, Respondent and an acquaintance—— Dr. Joseph Wagner, also a licensed chiropractor in the State of Florida——matriculated at a medical school in the Dominican Republic. Although both Respondent and Dr. Wagner ultimately earned Doctor of Medicine ("MD") degrees in the mid 1990s, Respondent was not licensed in Florida to practice as an MD until early 2006. Significantly, Dr. Wagner never obtained licensure as a medical doctor. In 2007, Respondent and Dr. Wagner entered into a joint venture designed, in the words of Respondent, to "expand" Dr. Wagner's chiropractic practice. At that time, and for the duration of their business agreement, Respondent's principal place of business was located in Palm Beach County, while Dr. Wagner practiced chiropractic medicine in Daytona Beach. Under the joint venture (which continued until August 2011, when both their offices were raided by the Federal Bureau of Investigation), Respondent traveled to Daytona Beach several times each month and interacted with Dr. Wagner concerning some, but not all, of Dr. Wagner's chiropractic clients (hereinafter "joint-venture clients" or "JVCs"). From what can be gleaned of the credible portions of Respondent's deposition and final hearing testimony, it appears that Respondent's activity with respect to JVCs included a review of client files, and, in some cases, a determination that one or more medications——including narcotics——should be prescribed. Indeed, Respondent's level of participation was so minimal that his face-to-face interaction with JVCs consisted, at most, of an initial introduction, and on no occasion did Respondent personally examine——or perform treatments upon——any JVC. At the conclusion of an office visit, Dr. Wagner——and Respondent, if the JVC was seen on a day when Respondent was present in the Daytona office——dictated medical notes that Dr. Wagner usually transcribed at a later time. Respondent has acknowledged, both at the final hearing and during his deposition, that he provided Dr. Wagner with blanket authority to create claim forms and medical notes in connection with each JVC. Incredibly, Respondent also granted Dr. Wagner complete authority to affix his (Respondent's) signature to claim forms and submit them——without Respondent looking at the forms beforehand——to insurance carriers for reimbursement. This was accomplished not by the use of a stamp, which medical professionals often provide to their subordinates to expedite business affairs, but by Dr. Wagner manually signing, in cursive, "John P. Christensen" inside the box of the claim form labeled "signature of the physician or supplier." Another unusual aspect of the business arrangement between Respondent and Dr. Wagner was the manner in which they dealt with reimbursement checks from insurance carriers. By agreement, reimbursement checks for claims that related to JVCs were received by mail at Dr. Wagner's place of business in Daytona Beach. Upon their receipt, Dr. Wagner deposited the checks into a SunTrust checking account for which Respondent had sole signatory authority. At the end of each month, Respondent would transfer the entire balance of the SunTrust account into his business account at PNC Bank. Shortly thereafter, Respondent would draft a check on the PNC account to Dr. Wagner in an amount equal to 50 percent of the monthly proceeds.2/ Against the foregoing backdrop, the undersigned will turn to the specific allegations enumerated in the Complaint, namely: that Dr. Wagner, in connection with JVCs, submitted claims to an insurance carrier for services that were never provided——i.e., he overbilled——and that Respondent approved, authorized, and/or knew or should have known of the misconduct (as charged in Counts One and Three); and that the Respondent and Dr. Wagner's billing practices with respect to the four JVCs constituted fraudulent, deceptive, or untrue representations related to the practice of a profession (Count Two). The undersigned will begin with a discussion of the facts relating to Count Two. Deceptive Billing Practices In or around August 2009, three individuals——S.J., J.J. (S.J's cousin), and L.J. (S.J's mother)——were involved in an automobile accident. Thereafter, in late 2009 and early 2010, S.J., J.J., and L.J. presented themselves on a number of occasions for chiropractic services at Dr. Wagner's office in Daytona Beach. Roughly one year earlier, patient C.H. was likewise involved in a car accident. C.H. was subsequently referred to Dr. Wagner for chiropractic treatment by her personal injury attorney, Joshua Wagner, who happens to be the son of Dr. Joseph Wagner. It appears from the record that C.H. was treated at Dr. Wagner's clinic on multiple dates. Pursuant to the parties' Joint Prehearing Stipulation, it is undisputed that S.J., J.J., L.J., and C.H. each had personal injury protection (PIP) insurance from Direct General Insurance Company ("DGIC"). PIP insurance coverage allows a medical or chiropractic provider to treat insured persons and then submit a reimbursement claim to the insurance company for the service(s) provided. Beginning with the claims associated with C.H., Respondent has consistently maintained that C.H. was not a joint-venture client, that he had no knowledge of C.H., and that any claim submitted by Dr. Wagner in connection with C.H. was without his knowledge or authorization. The undersigned credits this portion of Respondent's testimony; thus, any bills that relate to C.H. cannot sustain a finding of a deceptive or fraudulent practice. However, the cases of S.J., J.J., and L.J. are another matter. Based upon Respondent's deposition testimony, the undersigned is persuaded that Dr. Wagner, with Respondent's knowledge and authorization, submitted reimbursement claims to DGIC in connection with S.J., J.J., and L.J. that bear the following dates: January 30, 2010 (S.J.); January 30, 2010, and March 13 and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.).3/ While the exact services billed to DGIC varied by JVC and date, the content of each of these claim forms represented unambiguously that the examinations and/or treatments——e.g., a trigger point injection for L.J. on March 27, 2010——were performed by Respondent and no other. This was unquestionably deceptive in light of Respondent's consistent testimony that he never physically conducted medical examinations or treatments in connection with any joint-venture client. Alleged Overbilling In contrast to Count Two, the charges that relate to overbilling (Counts One and Three) cannot be sustained merely by proof that claims for reimbursement——i.e., the claims identified in paragraph 16 above, which Respondent authorized——were submitted for services that Respondent did not perform. Rather, it is incumbent upon Petitioner to demonstrate that the services billed were not performed at all. In this regard, the deposition transcripts of L.J. and S.J., which consist entirely of hearsay, are the only evidence that the billed services were not performed by anyone. While the deposition testimony of L.J. and S.J. is credible, there is a complete absence of non-hearsay evidence as to what procedures or services were never provided to these specific patients during their office visits. All that was proven——based upon Respondent's admissions and supplemented by the hearsay testimony of the JVCs——is that Respondent did not perform the billed services, which, as explained in greater detail in the Conclusions of Law of this Recommended Order, is insufficient to satisfy Petitioner's burden. Ultimate Findings of Fact It is determined, as a matter of ultimate fact, that Respondent engaged in deceptive, untrue, or fraudulent representations in or related to the practice of his profession. It is further determined, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent submitted to a third-party payor a claim for a service or treatment that was not actually provided to a patient. Finally, as a matter of ultimate fact, it is determined that that Petitioner failed to prove that Respondent, in connection with a personal injury protection claim, intentionally submitted a bill or claim for reimbursement for services that were not rendered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Dismissing Counts One and Three of the Corrected Amended Administrative Complaint; Finding that Respondent violated section 456.072(1)(m), Florida Statutes, as charged in Count Two; Suspending Respondent's license to practice chiropractic medicine for a period of one year; Placing Respondent on probation for a period of two years, with conditions deemed appropriate by the Board; and Imposing a fine of $10,000. DONE AND ENTERED this 16th day of March, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2012.
Findings Of Fact At all times relevant thereto, Respondent, Anthony S. Coco, held chiropractic license number 0001508 issued by Petitioner, Department of Professional Regulation, Board of Chiropractic Examiners. He is authorized to practice chiropractic in the State of Florida and presently maintains an office at 65 Royal Palm Beach Boulevard, Vero Beach, Florida. In response to a newspaper advertisement, Thomas A. Murphy visited the office of Respondent on May 13, 1980, regarding treatment of low back pain, impotence, nervousness, headaches and general aches and pains. Murphy had a 100 percent service-connected disability and was already being treated by a medical physician for other undisclosed ailments. Murphy was given a complete examination by Coco, including neurological and orthopedic tests. Additionally, eight x-rays were taken of the patient. As a general practice, Coco does not record negative (or normal) results on the patient's records. Because all tests except the x-rays were negative, the results of the examination were not reflected on Murphy's patient records. However, a detailed record of his findings were prepared in a request for authorization to provide chiropractic treatment forwarded to the Veteran's Administration (VA) on May 15, 1980. The request was later denied by the VA, and Murphy terminated his relationship with Respondent. Murphy became involved in a dispute with a secretary in Coco's office and filed a complaint against him with Petitioner. Petitioner then retained the services of an outside consultant, Dr. Fred C. Blumenfeld, to examine Murphy's patient file. Blumenfeld was initially given an incomplete file to examine, and based upon his initial review of the incomplete file, concluded that Respondent failed to exercise reasonable care in his treatment of Murphy. That precipitated the instant proceeding. Prior to the final hearing, Blumenfeld gained access to the entire file, and upon examining the same, reached an opinion that no "malpractice" had occurred. Although he testified that he would have marked the x-rays differently, and would have noted all negative findings on Murphy's patient chart, he did not otherwise criticize Coco's treatment of Murphy, and saw no basis for the issuance of an administrative complaint. Three other experts, including a nationally recognized professor of chiropractic and a former member of the Board of Chiropractic Examiners, each concluded that Coco's treatment of Murphy was proper and consistent with generally recognized standards of skill and care of chiropractors in the community. They also concluded that Coco's diagnosis of Murphy's ailments, as reflected on his patient notes and letter of May 15, were consistent with the x- rays taken of Murphy. Although Mr. Murphy appeared at the final hearing, he did so reluctantly and had no complaint regarding his examination and the diagnosis rendered by Coco.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED this 21st day of March, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1983.
The Issue The issue 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
Findings Of Fact Petitioner was a candidate for the May 1988, Chiropractic Physiotherapy certification examination. The exam consists of a written and an oral part, covering various areas of chiropractic physiotherapy. The written and oral parts of the exam are graded separately and a candidate must score 75 points on each part in order to pass and be certified in Physiotherapy. Petitioner had previously passed the written portion of the exam and was attempting only the oral portion of the physiotherapy exam. Petitioner claims he was incorrectly graded on the oral exam in the areas of manual, ultrasound and galvanic therapy. At the hearing Petitioner abandoned his claim that he was incorrectly graded on the galvanic therapy portion of the exam and that claim is not considered further for purposes of this recommended order. Petitioner obtained a score of 66.6 on the oral exam. The oral practice exam for physiotherapy certification is graded subjectively according to a candidate's response to questions asked by two grading chiropractors. The graders have been licensed to practice chiropractic for more than five years in Florida and have undergone some grade standardization training prior to examining the candidate for certification. Each grader assigns his or her point score independent of the other grader. A candidate's response therefore has two scores assigned by each grader. The points given by each grader are totalled. The two totals are then averaged together for the overall score on the exam. Some difference in the points assigned often occur. However, the difference between the two scores seldom exceeds 1 point and would therefore not be an unreasonable discrepancy when consideration is given to the effects of grading a subjective test and the effects of averaging the two point scores given by each grader. The grade range is from 1-4 points with one being the lowest score and four being the highest score. A score of 4 points is given when a candidate demonstrates superior or expert knowledge in the subject area tested. A score of 3 points is given when a candidate demonstrates minimal competency in the subject area tested. A score of 2 points is given when the candidate's answer is wrong but not dangerous to the patient. A score of 1 point is given when a candidate's response is wrong and dangerous to the patient. Dr. Brennan scored a 1.5 and 2.5 on the manual portion of the exam and a 1.5 and 2.5 on the ultrasound portion of the exam. In both instances Petitioner's answers to the questions covering the manual and ultrasound areas of the exam were wrong. Therefore the scores given by each grader could not exceed 2.9 points. Even if the highest allowable score is awarded for Petitioner's responses the additional points are not sufficient to raise Petitioner's score to a 75. Based on the above facts Petitioner has failed to present sufficient evidence to establish that he should be certified in Chiropractic Physiotherapy. More importantly, however, Petitioner's answer to the ultrasound portion of the exam was wrong and dangerous to the patient. Petitioner was clearly confused by the manner in which the question was asked by the examiner. However, the confusion did not exclude the candidate's ability or opportunity to give the correct answer in order to take the safest course of therapy to the patient. To Petitioner's credit he did demonstrate competency in his responses to the other question pertaining to the ultrasound area. It was the application of that knowledge that Petitioner failed to demonstrate. The explanations given by each grader, justifying a failing score given to the candidate, reflect the above. Therefore, neither of the graders scores on the ultrasound portion of the exam can be said to be incorrect and should remain the same. Petitioner failed to demonstrate that the two grader's scores on the manual and ultrasound portion of the exam were devoid of logic or reason for its respective assignment. Petitioner, therefore, failed to demonstrate that he was incorrectly graded on the oral exam and should be certified in Chiropractic Physiotherapy.
Recommendation Based on the foregoing Findings of Fact acid Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that he was incorrectly graded on the Chiropractic Physiotherapy exam and should be certified in the area of Chiropractic Physiotherapy. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX The facts contained in paragraphs 1, 2, 3 and 4 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 5 and 6 of Respondent's Proposed Findings of Facts are subordinate. COPIES FURNISHED: Brian P. Brennan 5828 Rawson Lan Pensacola, Florida 32503 E. Harper Field General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Kenneth Easley Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Pat Gilford Executive Director 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729
