06-000664PL Department Of Health, Board Of Chiropractic Medicine vs. James Hether, D.C. Status: Closed Recommended Order on Friday, July 28, 2006.

Summary: Respondent inappropriately touched patient while giving a massage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0664PL

)

JAMES HETHER, D.C. , )

)

Respondent . )

)

REC OMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 20, 2006, in Orlando, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Tobey Schultz, Esquire

J. Blake Hunter, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802 - 2753

STATEMENT OF THE ISSUE S

Whether Respondent violated Subsections 460.413(1)(ff) and

456.072(1)(u), a nd Section 460.412, Florida Statutes (2002), 1

and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On October 12, 2005, Petitioner, Department of Health,

Board of Medicine (Department), filed an Administrative

Complaint against Respondent, James E. Hether, D.C.

(Dr. Hether), alleging that he violated Subsection

460.413(1)(ff), Florida Statutes, by violating Subsection

456.072(1)(u), Florida Statutes, or by violating Section

460.012, Florida Statutes. Dr. Hether requested an

administrative h earing, and the case was forwarded to the

Division of Administrative Hearings on February 17, 2006.

The parties filed an Amended Joint Pre - Hearing Stipulation,

in which they agreed to certain facts as stated on pages four

and five of the Amended Joint Pre - Hearing Stipulation. To the

extent relevant, those facts are incorporated in this

Recommended Order.

Dr. Hether filed a Motion to Strike the Department's Expert

Witness, Deborah Day, Psy.D., or , in the Alternative , Motion to

Limit her Testimony and a Moti on in Limine Regarding Dr. Watson.

The motion to strike Dr. Day as an expert witness for the

Department was GRANTED. The Department proffered the testimony

of Dr. Day. The Motion in Limine Regarding Dr. Watson was

DENIED, and Dr. Watson's deposition was admitted in evidence.

At the final hearing, the Department called C.B. as its

witness. Petitioner's Exhibits 1 and 2 were admitted in

evidence. Petitioner's Exhibit 3 was proffered. Dr. Hether

testified in his own behalf and called Kathe Hether and Cha se

Hether as his witnesses. Respondent's Exhibits 1 through 3 were

admitted in evidence. Joint Exhibits 1 and 2 were also admitted

in evidence.

The one - volume Transcript was filed on June 6, 2006. The

parties timely filed their P roposed R ecommended O rde rs, which

have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Dr. Hether

was a licensed chiropractic physician within the State of

Florida, having been issued license number CH 2601 on or about

April 16, 1977. Other than the instant Administrative

Complaint, Dr. Hether has had no disciplinary action taken

against his license.

2. In April 2003, Dr. Hether had two chiropractic offices,

one in Port Orange, Florida, and one in Deland, Florid a. On or

about April 8, 2003, C.B., a 29 - year - old female, presented

herself to Dr. Hether's office in Port Orange, Florida, in order

to receive chiropractic treatment for injuries she sustained in

an automobile accident.

3. C.B. began receiving treat ments in the Port Orange

Office, but switched her appointments to the Deland office on or

about May 8, 2003. The remainder of her treatments w as given at

the Deland office. Her treatments included chiropractic

adjustments and massages. The chiropractic adjustments were

performed by Dr. Hether and other physicians who worked for

Dr. Hether; however, the majority of the chiropractic

adjustments were performed by Dr. Hether. Until C.B.'s visit on

June 11, 2003, all the massages had been performed by licens ed

massage therapists who worked for Dr. Hether. From on or about

April 8, 2003, up to June 11, 2003, C.B. received various

chiropractic treatments at Dr. Hether's offices without

incident.

4. On June 11, 2003, C.B. presented herself to

Dr. Hether's offi ce to receive her usual chiropractic treatment,

including a massage. Dr. Hether, his son, and another male were

in the office. Dr. Hether offered to perform the massage on

C.B. because the regular massage therapist was not present, and

C.B. accepted.

5 . C.B. went into the massage room, undressed to her

underwear, and lay face down on the table with a sheet draped

over her. Dr. Hether came into the massage room and began to

massage C.B. Dr. Hether and C.B. were the only persons in the

room during the ma ssage.

6 . While C.B. was lying face down, Dr. Hether slipped his

hands under C.B.'s underwear on the left side of her buttocks

and then placed his hand under her underwear on the right side

of her buttocks. At Dr. Hether's instruction, C.B. turned over

o nto her back. Dr. Hether placed his hands under C.B.'s breast

area and rubbed upward towards her cleavage. Dr. Hether then

slid his hand down C.B.'s body toward her vaginal area, grabbed

a part of C.B.'s vaginal area, and began to make grunting noises

as if he were getting sexual pleasure from the touching .

7 . While Dr. Hether was touching C.B.'s vaginal area,

Chase Hether, Dr. Hether's son and office manager, knocked on

the door to the massage room. Dr. Hether briefly stopped the

massage to speak to hi s son. The door was partially open, but

Chase Hether could not see inside the massage room.

8 . After speaking to his son, Dr. Hether closed the door

and walked back to the massage table, where he again placed his

hand in C.B.'s vaginal area and slid his fingers back and forth.

Dr. Hether then shoved his hand further down C.B.'s panties and

repeatedly thumped C.B.'s vaginal area. While Dr. Hether was

thumping her vaginal area with one hand, he grabbed C.B.'s ankle

with the other hand, while using the ful l pressure of his body

weight on her body. Dr. Hether resumed making the grunting

sounds and continued to make the sounds for a while.

9 . C.B. had approximately 27 massages at Dr. Hether's

offices from the time she began treatment in April 2003 until

J une 11, 2003. The massage therapists who gave her those

massages did not touch C.B.'s pubic area or touch the areas

around C.B. breasts.

1 0 . After the massage, C.B. got dressed and went into

another room to receive a chiropractic adjustment from

Dr. Heth er. Dr. Hether gave the chiropractic adjustment without

any further inappropriate touching. After he concluded the

chiropractic treatment, he asked C.B. personal questions about

her living arrangements and occupation.

1 1 . C.B. went into the reception ar ea of the office to

leave the building. She saw Chase Hether and another man in the

reception area. C.B. did not tell either man what had happened

nor did she tell them that she would not be back to Dr. Hether's

office for treatment.

1 2 . While Dr. Hethe r was touching C.B. inappropriately,

she did not cry out, tell him to stop, or attempt to leave.

When Chase Hether came to the door of the massage room, C.B. did

not tell him what Dr. Hether was doing. C.B. did not try to

stop the massage, leave Dr. Heth er's offices, or tell others at

Dr. Hether's office about the inappropriate touching because she

was afraid of Dr. Hether and did not know what else Dr. Hether

might do to her. She felt like she was a "visitor in her own

body" and had no control over what was being done to her. She

did not report the incident to the police department because she

felt that the police were ineffective.

1 3 . C.B. did not go back to Dr. Hether's offices for

treatment after the incident on June 11, 2003. She sought

treatment from another chiropractic physician, Dr. Kimberly

Watson, whom C.B. saw on June 23, 2003. C.B. told Dr. Watson

what had happened to her at Dr. Hether's office. Dr. Watson

advised C.B. that she could file a complaint with the Department

of Health.

1 4 . C. B. did send a complaint to the Department of Health

in June 2003, but she sent it to the wrong address. She got the

correct address from Dr. Watson and filed a complaint with the

Department of Health in September 2003. A year passed , and she

contacted th e Department of Health, wanting to know the status

of her complaint. C.B. was told to file another complaint,

which she did.

1 5 . Dr. Hether's wife, Kathe Hether, testified that she

was at Dr. Hether's office the day of the incident and that as

C.B. was leaving the office she spoke to C.B. for several

minutes concerning her publishing business and that C.B. told

her that she was going to another chiropractor that was nearer

to her home. Mrs. Hether's testimony is not credible. Her

husband of 36 years di d not advise her until two months before

the final hearing, that an administrative complaint had been

filed against him. It is inconceivable that two and one - half

years after their conversation, Ms. Hether vividly remembers

talking to C.B. when there had been no reason to remember the

conversation. Additionally, Ms. Hether's explanation for C.B.'s

failure to return to Dr. Hether for treatment because C.B.

wanted to go to a chiropractor closer to her home is also not

credible. C.B. chose to seek treatment from Dr. Watson, whose

office was about the same distance from C.B.'s home as

Dr. Hether's office. C.B. also told Dr. Watson about the

incident with Dr. Hether, explaining the reason that she

discontinued treatment with Dr. Hether.

1 6 . C.B. has not brou ght a civil action against Dr. Hether

for the incident on June 11, 2003. She filed the complaint with

the Department so that Dr. Hether would not touch other patients

inappropriately.

CONCLUSIONS OF LAW

1 7 . The Division of Administrative Hearings has

jur isdiction over the parties to and the subject matter of th is

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2005).

1 8 . The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Departmen t of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). In Slomowitz

v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983), the court

developed a working definition of "clear and convincing

evidence," which has been adopted by the Florida S upreme Court

in In re Davey , 645 So. 2d 398 (Fla. 1994). The court in

Slomowitz stated:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

te stimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

t ruth of the allegations sought to be

established.

Slomowitz , 429 at 800.

19 . The Department alleged that Dr. Hether violated

Subsection 460.413(1)(ff), Florida Statutes, which provides that

disciplinary action may be taken against a chiropractic

physici an for violating any provision of Chapters 460 and 456,

Florida Statutes, or any rules promulgated pursuant to those

chapters. The Department alleged that Dr. Hether violated

Subsection 456.072(1)(u), Florida Statutes, which provides that

disciplinary act ion may be taken for "[e]ngaging or attempting

to engage in sexual misconduct as defined and prohibited in

s. 456.063(1)." Subsection 456.063(1), Florida Statutes,

states:

Sexual misconduct in the practice of a

health care profession means violation of

the professional relationship through which

the health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate

f amily member, guardian, or representative

of the patient or client in, or to induce or

at tempt to induce such person to engage in,

verbal or physical sexual activity outside

the scope of the professional practice of

such health care profession. Sexual

misconduct in the practice of a health care

profession is prohibited.

2 0 . The Department a lso alleged that Dr. Hether violated

Section 460.412, Florida Statutes, which provides:

The chiropractic physician - patient

relationship is founded on mutual trust.

Sexual misconduct in the practice of

chiropractic medicine means any violation of

the chiro practic physician - patient

relationship through which the chiropractic

physician uses said relationship to induce

or to attempt to induce the patient to

engage, or to engage or attempt to engage

the patient, in sexual activity outside the

scope of practice or the scope of generally

accepted examination or treatment of the

patient. Sexual misconduct in the practice

of chiropractic medicine is prohibited.

2 1 . The Department has established by clear and convincing

evidence that Dr. Hether violated Subsection s 416.413(1)(ff) and

456.072(1)(u), and Section 460.412, Florida Statutes. In the

setting of a patient - physician relationship, Dr. Hether

inappropriately touched C.B. in the area of her vagina and

breasts during a massage he was giving C.B. The purpose o f the

touching was not therapeutic, but was for Dr. Hether's own

sexual gratification. The testimony of C.B. was believable.

She recalled the events with clarity. Her description of

Dr. Hether's actions ha s been consistent, precise, and explicit.

She n ever returned to Dr. Hether's office after June 11, 2003,

but changed chiropractic physicians and told her subsequent

treating physician of Dr. Hether's inappropriate actions within

two weeks of the incident.

2 2 . Florida Administrative Code Rule 64B2 - 16.0 03(1)(h),

provides that the range of penalties for a violation of

Section 460.412, Florida Statutes, is a minimum of a one - year

suspension followed by two years ' probation under terms and

conditions set by the Board of Chiropractic Medicine , including

supe rvision and a fine of not less than $1,000 per violation

to permanent revocation. Florida Administrative Code

Rule 64B2 - 16.003(1)(nn), provides that a range of penalties for

violating Subsection 460.413(1)(ff), Florida Statutes, is from a

minimum fine o f $1,000 and/or a letter of concern up to a

maximum fine of $5,000 and/or suspension for two years followed

by two years ' probation. Florida Administrative Code

Rule 64B2 - 16.003(1)(uu), provides that the range of penalties

for a violation of Subsection 4 56. 072(1)(u) , Florida Statutes,

is a minimum letter of concern and/or a PRN referral for

evaluation up to a maximum fine of $10,000 and/or revocation.

2 3 . Florida Administrative Code Rule 64B2 - 16.003(2)

provides that certain factors may be taken into cons ideration in

determining the appropriate disciplinary action to be taken and

in going outside the disciplinary guidelines. Some of the

factors include the length of time the licensee has been

practicing his profession and prior discipline imposed upon the

licensee. Dr. Hether ha s been a practicing physician for over

29 years and has had no prior disciplinary action .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

James Hether , D.C., violated Subsection 460.413(1)(ff), Florida

Statutes, by violating Subsection 456.072(1)(u) and

Section 460.412, Florida Statutes; issuing a reprimand; imposing

a $2,500 administrative fine; requiring a psychological

evaluation by the professional resource network; and placing him

on probation for two years, the terms of which would include a

practice restriction prohibiting him f ro m treating female

patients without another certified health care professional in

the room.

DONE AND ENTER ED this 28th day of July , 2006 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of July , 2006 .

ENDNOTE

1/ Unless otherwise provided, references to the Florida

Statutes are to the 2002 version.

COPIES FURNISHED :

Tobey Schultz, Esquire

J. Blake Hunter, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P .A.

Post Office Box 2753

Orlando, Florida 32802 - 2753

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Joe Baker, Jr., Executive Director

Board of Chiropractic Medicine

Department of H ealth

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommende d Order should be filed with the agency that

will issue the Final Order in this case.