Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1983.
Findings Of Fact At all times 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.
Findings Of Fact Respondent, Richard Powers, was at all times material hereto a licensed chiropractor in the State of Florida, having been issued license number CH0003372. Respondent has routinely advertised his chiropractic practice in the Palm Beach Post. On July 8, 1984, July 15, 1984, and September 2, 1984, Respondent ran an advertisement in the Palm Beach Post which offered a free examination and which stated that the "usual value of this exam is $80. This includes X-rays if needed." The advertisement did not include the disclaimer mandated by Section 455.24, Florida Statutes. That statute, effective June 12, 1984, required that: In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider ... (such as Respondent) ... the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. By memorandum dated September 30, 1984, the Department of Professional Regulation, Board of Chiropractic (Board), advised all licensees of the aforesaid amendment to section 455.24. Respondent asserts he had no knowledge of the amendment until his receipt of the Board's memorandum in October, 1984, and that he complied, or attempted to comply, with the amendment at all times thereafter. The evidence supports Respondent's assertions. The advertisements of July 8, 1984, and July 15, 1984, were captioned in bold type "ADVANCED APPLIED CHIROPRACTIC," listed Respondent as a diplomate of the National Board of Chiropractic, and concluded in bold type "A STANDARD OF EXCELLENCE." The advertisement of September 2, 1984, touted Respondent's clinic as "Advanced Applied Chiropractic and Comprehensive Pain Center." The generally accepted definition within the medical community of diplomate is an individual who has completed an extensive post graduate program and successfully passed the board's examination. This establishes superior qualifications in the individual's field of practice. Although the National Board of Chiropractic issues diplomate certification to those individuals who pass its examination, its examination is a basic licensing examination which establishes minimal competency, not excellence. Respondent's use of the phrase "Advanced Applied Chiropractic" to describe his clinic implies that he possesses skills superior to the average chiropractor. Respondent has registered the phrase "Advanced Applied Chiropractic" as a fictitious name. Respondent was, on one prior occasion, disciplined by the Board for an advertising violation.
Findings Of Fact The 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 engaged in sexual misconduct in the practice of chiropractic medicine, in violation of section 460.412, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of chiropractic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this proceeding, Dr. Rodriguez was a licensed chiropractor in the State of Florida, having been issued license number CH 9812 on September 17, 2009. Dr. Rodriguez's address of record with the Department is 1840 Northwest 122nd Terrace, Pembroke Pines, Florida 33026. Patient D.H. was a 22-year-old patient of Dr. Rodriguez. She had been referred to Dr. Rodriguez by her mother, also a patient. Patient D.H. was the one who suggested initial treatment with Dr. Rodriguez. She had seen him about six times over a period of two months. On or about June 6, 2012, Patient D.H. presented to Dr. Rodriguez for chiropractic treatment. Dr. Rodriguez began treating Patient D.H. in one of the treatment rooms in his practice. As she was turning over on the examination table, Patient D.H.'s left breast was exposed. Dr. Rodriguez commented on her breast being exposed. Patient D.H. replaced her breast under her tank top. As Dr. Rodriguez continued with his treatment, her breast was again exposed, prompting Dr. Rodriguez to say that Patient D.H. was getting him excited, or words to that effect. Dr. Rodriguez touched both of her breasts with his hands. He then kissed her breasts. Patient D.H. testified that she was in shock because his actions were sudden and caught her off guard. Dr. Rodriguez left the room. Dr. Rodriguez's staff placed Patient D.H. in a massage chair in a common area of the office. After Patient D.H. stated that she still had pain, she was taken into another room for an additional treatment on her shoulder. In the new room, Patient D.H. lay down on the treatment table. After placing some patches on her shoulder, Dr. Rodriguez again touched her breasts. He placed his hand inside her pants and inserted two fingers into her vagina. She testified that she told him to stop. Dr. Rodriguez again told her how she excited him. Patient D.H. later testified that she was in shock and unable to react. Dr. Rodriguez and Patient D.H. made a "pinky promise" not to say anything, and then Dr. Rodriguez washed and dried his hands. He placed a Chinese herbal remedy above her left breast, told her to sleep, and left the room. When he returned, Patient D.H. began crying. Dr. Rodriguez gave her a hug and kissed her on the cheek. While Patient D.H. was in a treatment room with Dr. Rodriguez, he engaged in sexual contact with her which was outside the scope of her medical treatment. Other than as described, Patient D.H. made no complaint to Dr. Rodriguez, nor did she complain to an office staff member. Patient D.H. left Dr. Rodriguez's office and started driving to her cousin's house. She then pulled over and called the police and her mother to tell what had happened. Patient D.H.'s mother testified that she received a phone call from her daughter about 5:00 p.m., saying that Dr. Rodriguez had molested her, and immediately went to meet her. Patient D.H.'s parents took her to the Cooper City district office of the BCSO to report the crime. On June 11, 2012, in conjunction with a criminal investigation by the BCSO, Patient D.H. made a controlled telephone call to Dr. Rodriguez while in the presence of a detective. During the conversation, Dr. Rodriguez said that he did not want to discuss things on the telephone because he could not be sure he was not being recorded, and asked Patient D.H. to come see him at the office. Patient D.H. said she would be uncomfortable seeing him and that is why she had called on the telephone. Their conversation included words to the following effect: Patient D.H.: Do you . . . do you really do this to your other patients? Dr. R.: I don't. That's why I'm . . . I couldn't sleep this weekend. I . . . I . . . I'm exhausted. I'm physically and mentally exhausted. Patient D.H.: But why me? Dr. R.: I don't know. It just happened, hon. That's what I'm telling you, it just, it just happened. Patient D.H.: I just want to know why me? Dr. R.: I don't . . . I don't know . . . I, I just don't know. Um . . . you know, and I wasn't sure because you know, um . . . you know you, you um, when you came about, you showed me your breasts, um . . . . Patient D.H.: It wasn't . . . you know, it was an accident, I wasn't trying to personally . . . . Dr. R.: No, but you know, but when you did the other part, you know, then I thought that that was um. Patient D.H.: What other part are you talking about? Dr. R.: No dear, no, your breasts, and that was an invitation . . . or an open, you know, "here" and for some reason we were talking about stuff, it's a blank to me. I do not remember . . . if you asked me . . . it was just, I do not remember, um, how exactly everything happened, but it just happened. Patient D.H.: Don't you remember . . . don't you remember putting your hand on my breasts and putting your two fingers in my vagina? Do you remember that? Dr. R.: Yes. Patient D.H.: Yes, you do remember that, right? Dr. R.: Hon, I don't even want to, I don't even want to go there. I don't even want to be going there, because I didn't feel comfortable with that at all. Patient D.H.: How, how do you think I feel? I'm not comfortable at all myself. Dr. Rodriguez later engaged the services of a forensic audio engineer who generated an enhanced audio version of the above-described controlled telephone call. During this call, Detective Wernath's voice can be heard in the background, coaching Patient D.H. through portions of the conversation. The criminal investigation also found that a DNA sample from a buccal swab taken from Dr. Rodriguez matched DNA collected from Patient D.H.'s breast. As Mr. Rhodes testified, the chance of a false positive was less than one in 30 billion. Dr. Rodriguez has admitted the sexual activity, while maintaining that his conduct was invited by Patient D.H.'s actions. Specifically, Dr. Rodriguez testified that he believed that Patient D.H. intentionally made her breast "slip out" of her tank top several times, that it was not an accident. He testified that when he told her that he could see her exposed breast, she responded, "Oh, I don't mind." He testified that Patient D.H. was being flirtatious and, by her provocative actions, was encouraging his behavior. Dr. Rodriguez's testimony that he believed Patient D.H. encouraged his sexual misconduct is supported by his statements directly to Patient D.H. on the recorded call, when he thought no one else was listening, and is credible. But regardless of what Dr. Rodriguez may have perceived, or the degree, if any, to which Patient D.H. was complicit in Dr. Rodriguez's sexual misconduct, her involvement would not excuse his actions. A chiropractor is not free to engage in sexual activity with his patient even if the patient encourages or consents to it. There was scant evidence in the record to suggest that Dr. Rodriguez accepts or understands this professional responsibility. Patient D.H.'s testimony as to Dr. Rodriguez's actions was clear and convincing. Her testimony as to his actions is credited and is confirmed by his own statements in the controlled telephone call and at hearing. Respondent's touching of Patient D.H.'s breasts with his hand and mouth and insertion of his fingers into her vagina constituted engaging in sexual activity with a patient and was sexual misconduct in the practice of chiropractic medicine. Patient D.H. engaged in a civil lawsuit against Dr. Rodriguez. She has since executed a release in that case. Dr. Rodriguez has not previously been subject to disciplinary action by the Board. Dr. Rodriguez credibly testified that he has installed video cameras in the treatment rooms to ensure that there will be no further incidents. He noted that the purpose of these cameras was to protect him. Dr. Rodriguez demonstrated little or no remorse, the focus of his spirited testimony being directed towards the provocative conduct of Patient D.H., not his own inappropriate actions. Revocation or suspension of Dr. Rodriguez's professional license would have a great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Chiropractic Medicine, enter a final order finding Dr. Enrique Rodriguez in violation of section 460.412, Florida Statutes; revoking his license to practice chiropractic medicine; and imposing costs of investigation and prosecution. DONE AND ENTERED this 29th day of March, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 29th day of March, 2019.
Findings Of Fact At all times material here to, Respondent has been a chiropractic physician licensed under the laws of the State of Florida. Respondent placed the following ad, which appeared in the Miami Herald newspaper on Sunday, November 8, 1981, only: DRUGS? (note: A picture of Dr. is on the original document on file HEART PROBLEMS with the Clerk's Office.) HEADACHES Dr. Bob Bacher DIABETES Director HIGH BLOOD PRESSURE SKIN PROBLEMS 15.27 billion dollars spent in drug storeslast year. This does not include other sources, such as hospitals, clinics, etc; How can your lives be normal depending on drugs? To take a pill each day is dependency. Dependency is addiction. Pushed or prescribed you are an addict. Chiropractic can free you from drug dependency. Chiropractic finds the cause of sickness, corrects it, and allows the life within to heal the body. Come talk to us. We will tell you what you can do to get well and then it's up to you. \ALL CASES ACCEPTED REGARDLESS OF ABILITY TO PAY/ \ / We Accept: FREE X-RAYS Workers Compensation FOR MEDICARE PATIENTS Auto Accident Insurance $50-$100 Value When Necessary! Group Health Insurance Individual Health Insurance- Family Plan BACHER CHIROPRACTIC LIFE CENTER 9001 N.E. 2nd AVE. 756-LIFE CALL TODAY (5433) Some persons who have undergone chiropractic treatment and who have also suffered from the conditions listed in Respondent's advertisement have experienced, during the course of that treatment, some improvement in those conditions to the extent that some could reduce the medication taken for those conditions. The conditions listed in the ad encompass broad categories of diseases and include subcategories of those diseases for which a person must take medication in order to live. In a number of the diseased states listed, the medications being taken are not optional but rather are life-saving. The ad fails to distinguish among persons taking a daily multi-vitamin pill, persons requiring medication to remain alive due to some genetic defect, and persons addicted to illegal drugs for recreational purposes. The words "pill," "medication," and "drugs" are interchangeable only sometimes. A person can take a pill each day without being dependent or addicted. The words "dependency" and "addiction" mean the same thing to some medical professionals only. Many kinds of heart problems, headaches, diabetes, high blood pressure, and skin problems have never shown a response to chiropractic care alone, and there is no scientific or medical data showing that chiropractic treatment can curtail or eliminate the use of prescribed medication in all of the listed conditions. The implication of the ad, read in its entirety, is that every person who has the listed conditions can be helped by chiropractic and can be taken off pills/drugs/medication. Chiropractic does not have a high success rate of freeing people from drug dependency. Respondent's advertisement has the ability to endanger the health of the public for two reasons. First, persons may cease taking life-sustaining medication simply because they have gone to a chiropractor. Second, in situations involving true addiction to certain drugs, it is necessary that any attempts by the person addicted to withdraw from use of that drug be made only under the supervision of a medical doctor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of each and every allegation contained within the Administrative Complaint and assessing against him an administrative fine of $1,000 to be paid by a date certain. DONE and RECOMMENDED this 25th day of July, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lawrence M. Malman, Esquire Biscayne Building, Suite 412 19 West Flagler Street Miami, Florida 33130 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent, Peter P. Alongi, is a licensed chiropractic physician, practicing in Fort Lauderdale, Florida. An administrative complaint was filed by the Petitioner, Florida State Board of Chiropractic Examiners, dated December 7, 1978, alleging that the Respondent engaged in deception, misrepresentation or fraud by publishing a certain advertisement. An administrative hearing was requested by the Respondent. Thereafter, a motion to dismiss was filed by the Respondent prior to the formal hearing, which was denied. Respondent Alongi casued the following advertisement to be published in the Fort Lauderdale News in the month of May 1978: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute is presently engaged in what is the most expensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignment and utilizes a screening process called contour analysis. Volunteers are being sought for screening. Contour analysis enables taking a 3 dimensional picture (called moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient sympto- matically and levels of spinal tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasm, muscle imbalance, spinal distortion and scoliosis. This is a Public Service Program for partici- pating volunteers. The doctors are contributing their time, service and facilities for the program. Anyone wishing to be a volunteer may telephone participating doctors directly for information or an appt. Dr. Peter P. Alongi Dr. Larry Burch 2821 E. Commercial Boulevard 200 SE 12 St. Ft. Laud. Ft. Laud. 491-2449 764-0444 Ms. Laura Borys read the foregoing advertisement and, thinking there would be no charge for treatment, made an appointment with Respondent Alongi. Ms. Borys had interpreted the advertisement to mean that if she presented herself as a "research volunteer" there would be no cost to her. Ms. Borys was accompanied to Respondent Alongi's office by Ms. Katherine Leight, a sister-in- law of Ms. Borys. Ms. Leight had told Ms. Borys that she felt the advertisement was soliciting for paying customers, and that she based her view on the reason that she had never seen such an advertisement by any other chiropractor. Ms. Borys would not have made the appointment with Respondent Alongi to participate as a volunteer pursuant to said advertisement if she had know that x-rays and chiropractic treatment would be on a cost basis. Respondent Alongi performed a contour analysis and gave Ms. Borys a photograph of her back. The Respondent analyzed the photograph and advised Ms. Borys that she had a back problem, and that for a fee of $50.00 she could have x-rays taken and would be charged $15.00 per visit for treatment. Upon a close reading of the foregoing advertisement it is not likely that the general public would have been mislead into believing that free treatments or x-rays would be given. Ms. Borys' sister-in-law, Ms. Leight, did not believe the advertisement was inserted for any other reason than to solicit business for the two doctors included in said advertisement. No questions were raised or evidence submitted as to what constituted the "research program" other than the taking of the picture of the back, or whether members of the public were deceived or mislead into thinking that there was in fact a valid program. Both parties submitted proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they are specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the Administrative Complaint be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of July, 1979. COPIES FURNISHED: Paul W. Lambert, Esquire 1311 Executive Center Drive Suite 201, Ellis Building Tallahassee, Florida 32301 Thomas F. Panza, Esquire 2803 East Commercial Boulevard Fort Lauderdale, Florida 3308 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact L. R. Fleming is a chiropractic physician licensed by the Florida State Board of Chiropractic Examiners and holds License #1239. Dr. L. R. Fleming caused to be published in the Today Newspaper an advertisement, a copy of which was introduced into evidence as Petitioner's Exhibit 1. This advertisement read as follows: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute in conjunction with the New York Chiropractic College is presently engaged in what is the most extensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignments and utilizes a screening process called Contour Analysis. Volunteers are being sought for screening. Contour Analysis enables taking a three- dimensional picture (called Moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient symptomatology, and levels of tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasms, muscle imbalance, spinal distortions and scoliosis. There is no charge to participating volunteers, since the doctors are contributing their time, service, and facilities for the program. Final processing and evaluation will be done at the New York Chiropractic College. Anyone wishing to be a volunteer may telephone participating doctors directory for information or an appointment. MERRITT ISLAND TITUSVILLE MELBOURNE (doctor's (doctor's Dr. Lyle name deleted) name deleted) Fleming Phone 254-3343 The advertisement above was published in the Today Newspaper on or about April 1, 1978. Gladys Teate, of Melbourne, Florida, read this advertisement on or about April 1, 1978, and made an appointment with dr. Fleming for contour analysis on April 11, 1978. Gladys Teate kept the appointment on April 11, 1978, and had a contour analysis performed at Dr. Fleming's office. The process of contour analysis consisted of the taking of certain personal data together with symptomatology from Gladys Teate by one of the doctor's assistants. Thereafter, the doctor's assistant took a Moire photograph of Teate's back. Teate was then seen by Dr. Fleming, who performed an elementary examination of Teate's back and explained the Moire photograph to her. Teate had no recollection of the contour analysis, Dr. Fleming's examination, or any subsequent events to include any oral representations made by Dr. Fleming. However, records reflect that x-rays were taken of Teate at Dr. Fleming's office. Thereafter, a thorough chiropractic examination was performed by the doctor, who prepared a written diagnostic recommendation, a copy of which was introduced as Petitioner's Exhibit 3. Teate was unclear as to whether she saw Dr. Fleming on one or two (2) occasions; however, she was given a bill for $10 for a chiropractic examination and a bill for $45 for x-rays upon leaving Dr. Fleming's office. There was no charge for the contour analysis. No competent evidence of Dr. Fleming's indicating that further examination and diagnosis was free was presented. No evidence was introduced that the research program described in the advertisement was not a legitimate research program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners take no action against the license of Dr. L. R. Fleming, D.C. DONE AND ORDERED this 21st day of September 1979 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul W. Lambert, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Louis V. Cianfrogna, Esquire 308 Julia Street Post Office Drawer 6310-G Titusville, Florida 32780 Board of Chiropractic Examiners 6501 Arlington Expressway Building B, Suite 202 Jacksonville, Florida 32211
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed chiropractic physician, holding Florida license number CH 5839. In addition to his chiropractic training, the Respondent has completed a course of study in biomechanics and has received a "Masters of Professional Studies" degree from Lynn University in Human Biomechanical Trauma. He advertised services related to "Human Biomechanical Trauma" to other chiropractic physicians practicing in the same geographic area. On November 29, 2001, a twenty-nine-year-old female (referred to hereinafter as the patient) presented herself to the Respondent's office complaining of back pain of approximately two weeks duration. The patient was a former gymnast with many years of training. Her regular exercise routine included weight lifting, and the onset of her back pain occurred while she was lifting weights. Initially the pain was in the area of her mid-back and during the subsequent weeks had progressed to her lower back, and to her upper back and neck. The patient also had a history of migraine-type headaches unrelated to the weightlifting and for which she had sought previous treatment with limited success from another physician. On November 29, 2001, the Respondent completed a medical history and performed an evaluation of the patient's condition. The Respondent provided treatment and adjustment. During the time the patient received treatment, she removed all clothing but for her underpants, at the Respondent's direction. A robe was provided inside the treatment room for her to wear after undressing and before the treatment was provided. After providing the treatment on November 29, the Respondent referred the patient to another facility for a series of x-rays. On November 30, 2001, the patient returned for additional treatment at which time the Respondent performed an adjustment to the patient's neck and back. After the treatment was completed and the Respondent exited the room, the patient began to dress, at which point the Respondent entered the room holding a digital camera. The patient testified that the Respondent removed her robe, leaving her clad only in her underpants, that the Respondent told her that the photography was a routine office practice, and that he could not continue the treatment unless the photographs were taken. The patient testified that the Respondent was aggressive while the photographs were taken, speaking with a "raised voice" and moving quickly, instructing her on how to pose, and moving her arms and legs into position. The patient testified that during the incident she was scared and in a "dazed state," and that she didn't know how many photos were taken or how much time elapsed during the photo session. She made no attempt to leave the examination room until after the photos were taken. The Respondent denied that he told the patient that the photographic evaluation was a routine office procedure. The Respondent testified that he discussed the photographic evaluation with the patient and that she permitted the photos to be taken. He testified that he both verbally directed and demonstrated by example, the positions in which he sought to photograph the patient. He further testified that some of the positions came from the patient when describing her "activities of daily living." He testified that she participated in the photography willingly and without protest. Other than the Respondent and the patient, no one else was in the room during the time the photographs were taken. The Respondent's offices consisted of a small suite of rooms located in a strip shopping center. Based on the physical structure of the offices described at the hearing, it is unlikely that voices could be raised to the point of "yelling" without others in the office being aware of the situation. There is no evidence that the patient was physically prevented from leaving the office. Although the patient signed a generic release for treatment when she began seeing the Respondent, the patient testified that the release was essentially blank at the time she signed. In addition to the generic consent for treatment form, the Respondent's office had prepared a separate "Consent Agreement Concerning Biomechanic Photographic Evaluation" which provided as follows: Dear Patient: Holistic Healthcare Centers offers Biomechanic Photographic Evaluation for the purpose of specific biomechanic assessment of the patient. The procedure will include some or all of the following: Digital photos of the patient in various positions, movements and activities. These photographs will be taken with the patient partially or completely unclothed, as determined by the physician(s). Processing and analysis of these photographs on computers either on the premises or at another location, to be determined by the physician(s). Reportage to the patient as to the results of the analyses. Restrictions on the use of these photographs include: Photographic data will be kept in password protected locations and will be accessible only by Dr. Scott Baker and Dr. Scott Drizin. Appropriate hard copies of photographs will be kept in the patient's confidential case file, if needed. The photographic data will not be published either in print or electronically without the patient's express written consent. Utilizations of photographs, data and analyses results can be used educationally while protecting the privacy of the patient. I HAVE READ, UNDERSTAND AND CONSENT TO THE ABOVE. Under the conditions indicated, I hereby place myself under your care for those procedures as described above as indicated in your professional judgment. The "Consent Agreement Concerning Biomechanic Photographic Evaluation" provided a space for the signature of the person from whom consent is being sought and for the signature of a witness. The patient did not sign the photographic consent form. At no time did the patient sign any written release specifically allowing the Respondent to take photographs. According to his note handwritten on the "Consent Agreement Concerning Biomechanic Photographic Evaluation," the Respondent became aware at some point that the patient had not signed the photo consent form. A few days after the photos were taken, the patient returned to the Respondent's office and inquired about the photographs. By that time, the digital photo files had been transferred from the camera used to take the photos to a computer located in the Respondent's office. After the patient requested to view the photos, the Respondent went to a computer where the digital photo files were stored. The Respondent and the patient reviewed the photographs for about 45 minutes. During the photo review, the Respondent made comments that could be construed as relating to the patient's posture. According to the patient's testimony, such comments included "you're standing a little to the left on this one and you should be standing more upright on this one" and "see, you're standing crooked, you should be standing straight." During the photo review, the Respondent told the patient that he and his partner, Dr. Scott Baker, were interested in writing a book and pursuing additional medical training. The patient testified that the Respondent may have used the word "biomechanics" during the photo review, but was not certain. After the photos were reviewed, the patient asked for a copy of the digital image files. Initially the Respondent declined to produce the files, but by the end of the appointment, after receiving additional therapeutic treatment and adjustments, the Respondent provided to the patient a disc containing the photo files. According to the patient, the Respondent advised the patient not to show the photographs to anyone. After the patient received a copy of the photo files, she did not again see the Respondent in a therapeutic setting. She cancelled her remaining appointments with the Respondent, obtained her X-rays from the Respondent's practice, and sought treatment elsewhere. After the patient cancelled the appointments, she received at least one call from the Respondent's secretary inquiring as to the reason for the cancellation. During the call, the Respondent spoke to the patient and inquired as to whether there were problems, at which point the patient advised that she would not return to the Respondent for treatment. At the hearing, the Petitioner presented the expert testimony of Dr. Michael Major, a Florida-licensed chiropractic physician. Although Dr. Major appears to be knowledgeable about biomechanics, he has not undertaken any advanced education in biomechanics. Dr. Major testified one of the reasons to use photography in a chiropractic setting would be to observe structural changes that could occur related to treatment. Dr. Major testified that such photos are generally taken from front, side, or rear perspectives, and utilize spinal or anatomical "landmarks" for purposes of comparing pre-treatment and post-treatment conditions. Dr. Major further testified that he has used digital photography in his practice, generally placing subjects in front of a grid-pattern marked on a wall. Dr. Major's grid system also includes a bilateral scale to identify weight-bearing issues. By using the photo of the subject in front of the grid and on the scale, a chiropractic physician is able to show to a photographic subject various spinal or postural conditions. Dr. Major has used this system in marketing services to prospective clients. Dr. Major termed photos taken from positions other than in front of, to the side of, or from behind a patient as "oblique" angle photos. Dr. Majors testified that such photos had very little analytical value because of the difficulty in accurately reproducing at a subsequent date, the angles from which the original photographs were taken, thus making comparison between the sets of photographs difficult. Dr. Major testified that, when taking a later set of photos, where the angle of camera placement relative to the body is different from the original camera placement by only a few degrees, the later photograph would offer little comparative value because the landmarks would not be located appropriately. A review of the photographs in evidence indicates that the patient was photographed in a routine examination room, posed in various positions, and unclothed but for her underpants. At the hearing, Dr. Major reviewed the photos offered into evidence and opined that although some of the photos taken by the Respondent of the patient provided appropriate diagnostic information, others did not. Dr. Major testified where the photos did not contain appropriate diagnostic information, the Respondent violated the applicable standard of care by not utilizing the best techniques in order to isolate planes of motion sufficiently to provide useful information. Dr. Major also testified that the failure to obtain the patient's consent prior to taking photographs was a violation of the applicable standard of care. Dr. Major opined without elaboration that taking the photographs without the patient's consent also constituted sexual misconduct. According to Dr. Major, the failure to have another female present in the room during an exam was not a violation of the applicable standard of care. The Respondent offered evidence related to his use of photography and the development of a "protocol" that he and his partner were creating to document biomechanical evaluations of certain patients. In addition to the Respondent's testimony, the Respondent presented the testimony of Scott M. Baker, D.C., who was in practice with the Respondent at the time of the events at issue. At some point in the mid-1990's, Dr. Baker and the Respondent became interested in continuing their education in biomechanics, and both completed the additional biomechanics training referenced herein. Part of their interests included conducting research to develop a "protocol" for biomechanical evaluation. Part of the protocol included photographic evaluations of patients. The model apparently being followed referenced radiological studies where multiple X-rays from different angles were taken of a patient during diagnostic testing. However, although the Respondent asserted that the photographs were part of the treatment offered to the patient, Dr. Baker testified that the photos were not actually taken for diagnostic purposes. The alleged purpose of the photos was to educate a patient on existing conditions with the ability to demonstrate at a later date, visible progress though the use of comparative photography. Dr. Baker testified that after the Respondent took the photos of the patient, he and the Respondent reviewed the photos and indexed them by reference to anatomical characteristics. Dr. Baker acknowledged that some of the photos "weren't useful," but that it was preferable to err towards taking too many photos rather than too few, and that the intent was to discard those photos that were not useful. The consent form specific to the photographic study also indicates that the photos may be used for educational purposes with appropriate protection of a patient's privacy. Dr. Baker acknowledged that the protocol was in preliminary stages of development and that greater specificity would be required as development continued. Prior to the patient in this case, only one other chiropractic client had been photographed based on the protocol. When the photographs of the patient were taken, the position from which each photo was taken was not recorded. Dr. Baker testified that when subsequent photos were taken for comparative purposes, the photo subject would have to be repositioned based on the earlier photograph, using an anatomical point of reference. No visible grid pattern was present in the room where the patient's photos were taken and no grid is present in the photos taken of the patient by the Respondent. In order to view the photos, the Respondent planned to use a graphics software program called "Paint Shop Pro" which could allow a grid to be superimposed on a photograph. Whether the computer imposition of a grid pattern on a photo taken subsequently would provide specific anatomical references sufficient to compare the photos is unknown. The asserted reason why the patient wore only underpants in the photos was that wearing a bra would alter the center of gravity being measured. The Respondent further testified that wearing a bra could cause a "cutaneous sensory response" that could lead to a "reflex muscle spasm which would alter the center of gravity." The evidence fails to establish why the same reasoning was not applicable to the underpants that the Respondent directed the patient to leave on.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding that Scott Drizin, D.C., is guilty of a failure to practice chiropractic medicine with the level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances, and imposing a fine of $2,500. DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of November, 2005. COPIES FURNISHED: Louis Kwall, Esquire Kwall, Showers, Coleman & Barack, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701
