11-000722PL Department Of Health, Board Of Chiropractic Medicine vs. Paul Kevin Christian, D.C. Status: Closed Recommended Order on Tuesday, November 15, 2011.

Summary: Doctor failed to accurately describe his examination in his medical records and failed to maintain daily treatment notes that justified to the totality of the care provided to the patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0722PL

)

PAUL KEVIN CHRISTIAN, D.C. , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on August 17 through 19, 2011, in Tampa, Florida, before

Susan Belyeu Kirkland, an Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Michael R. Lowe, Esquire

Jack T. Cook, Esquire

Michael R. Lowe, P.A.

2180 West State Road 434, Suite 1124

Longwood, Florida 32779

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and

460.413(1)(r), Florida Statutes (2006) , 1/ and Florida

Administrative Code R ule 64B2 - 17.0065, and, if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

On December 24, 2008, the Department of Health (Department)

filed a three - count Administrative Complaint before the Board of

Chiropractic Medicine (Board) against Respon dent, Paul Kevin

Christian, D.C. (Dr. Christian), alleging that he violated

sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and

460.413(1)(r), Florida Statutes (2005 - 2007), and r ule 64B2 -

17.0065. Dr. Christian requested an administrative hearing.

T he case was forwarded to the Division of Administrative

Hearings on February 11, 2011, for assignment to an

Administrative Law Judge. The final hearing was scheduled to

commence on April 18, 2011. On March 28, 2011, the Department

filed Petitioner's Unop posed Motion to Reschedule Final Hearing.

The motion was granted by Order dated April 1, 2011. On July 6,

2011, Dr. Christian filed a motion to continue, and that motion

was granted by Order dated July 7, 2011.

On March 3, 2011, the Department filed a Mo tion to Take

Official Recognition of rules 64B2 - 16.003, 64B2 - 17.005, and

64B2 - 17. 0 065. The motion was granted by Order dated March 8,

2011.

On August 8, 2011, the parties filed an Updated Joint Pre -

hearing Stipulation and stipulated to certain facts conta ined in

section (e) of the pre - hearing stipulation. To the extent

relevant, those facts have been incorporated in this Recommended

Order.

At the final hearing, counsel for the Department advised

that he would not be presenting any evidence relating to

par agraph 50 a, b, e, and f of Count Two of the Administrative

Complaint, and paragraphs 44 a, b, c, d, e, g, h, and l 2/ of

Count One.

At the final hearing, Joint Exhibits 1 through 8 were

admitted in evidence. The Department called the following

witnesses: Dr. Christian; Peter Willis, D.C. (Dr. Willis) ; and

M.K. Petitioner's Exhibit 1 was admitted in evidence.

Dr. Christian testified in his own behalf and called the

following witnesses: Dr. Willis; Donald H. Woeltjen, D.C.;

Maurice Davidson, M.D. (Dr. Davidson) ; and David Kalin, M.D.

(Dr. Kalin). Respondent's Exhibit s 1 through 3 were admitted in

evidence.

The six - volume Transcript was filed on September 21, 2011.

The parties agreed at the final hearing to file their proposed

recommended orders within ten days of the filing of the

Transcript. On September 23, 2011, the Department filed

Petitioner's Unopposed Motion to Extend the Deadline for Filing

Proposed Recommended Orders. The motion was granted by Order

dated September 23, 2011, extending the time to file proposed

recommended orders to October 10, 2011.

The parties timely filed their Proposed Recommended Orders.

Dr. Christian's Proposed Recommended Order exceeded the maximum

limit of 40 pages. On October 10, 2011, the Department filed a

motion to strike Dr. Christian's Proposed Recommended Order. On

October 10, 2011, Dr. Christian filed a response and requested

that he be allowed to file an amended propose d recommended order

with changes to line spacing and deleting discussion of

attorne y's fees and costs. By Order dated October 13, 2011, the

motion to strike was granted, and the request to file an amended

proposed recommended order was granted. On October 17, 2011,

Dr . Christian filed Respondent's Amended Proposed Recommended

Order. T he parties' proposed recommended orders have been

considered in the prepara tion of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating the practice of chiropractic medicine in Florida,

pursuant to section 20.43 and chapters 456 and 460, Florida

Statutes.

2. Dr. Christian was at all times material to the

violations alleged in the Administrative Complaint a licensed

chiropractic physician in the State of Florida, having been

issued license number 5756 on or about February 4, 1998.

3. At all times material to the violations alleged in the

Administrative Complaint, Dr. Christian, Dr. Davidson, and

Dr. Kalin were employees of Comprehensive Physician Services,

Incorporated (CPS). Dr. Christian was the sole sto ckholder of

CPS.

4. On April 17, 2006, M.M. was involved in an automobile

accident when the car, in which she was a front - seat passenger,

hit a tree on the passenger side. The window next to M.M.

shattered and M.M. received lacerations to the right templ e area

of her head.

5. M.M. was transferred by ambulance to the emergency room

at Northside Hospital. While in the emergency room, a CT scan

was performed on M.M.'s head. The CT evaluation was normal.

The lacerations were sutured, and M.M. was discharged from the

emergency room.

6. On or about April 26, 2006, M.M. presented to CPS for

treatment of injuries due to the automobile accident on

April 17, 2006. M.M., who was a minor at the time, was

accompanied by her mother to CPS. M.M . 's complain ts were

headaches; neck pain and stiffness; mid - back pain and stiffness;

lower back pain and stiffness; difficulty sleeping due to pain;

and difficulty with concentration. She indicated that , on a

scale of one to ten, with ten being the most , the stiffnes s in

her neck and middle back was a five. On examination, Dr.

Christian found that M.M. had cervical and thoracic tenderness.

7. In his initial report, Dr. Christian noted the

hyperabduction tests were positive , and there was "left side

reduced pulse/pa resthesia due thoracic outlet compression

consistent with compression from seat belt trauma." However,

the test results contained in the medical records show that

there are negative findings on the hyperabduction tests. When

questioned about the discrepa ncy, Dr. Christian testified that

the positive findings were a result of the grip/pinch test that

he performed. He indicated that he made a mistake in his

initial report and that the report should have stated right side

reduced pulse. He could not explai n how the grip/pinch test

would lead him to conclude that there was a reduced pulse

because M.M.'s pulse would not be measured during a grip/pinch

test nor could he explain how he could learn from a grip/pinch

test that there was paresthesia. Later, he te stified that the

difference in the results was not due to the grip/pinch test ,

but was a result of a second hyperabduction test that he

performed prior to the grip/pinch test. Dr. Christian's

testimony is not credited.

8. Dr. Christian's practice is to have an assistant come

into the examination room during the testing. As he performs

the test, he tell s the assistant the results of the test, and

the assistant will record the test results. The medical records

do not show a second hyperabduction test be ing recorded by an

assistant. Therefore, the examination results are contrary to

the results stated in the initial report for April 26, 2006.

9. In his examination records of April 26, 2006,

Dr. Christian noted that there was " R [circled] Visual Acuity

D iff." M.M.'s mother was present during the examination and

observed Dr. Christian testing M.M.'s vision on April 26, 2006.

10. Dr. Christian testified that he first tested M.M.'s

vision on May 24, 2011. His testimony is not credited.

Dr. Christian's p ractice is to put findings of the previous

chiropractic examination on the report of the examination that

he is currently conducting so that a comparison could be made.

The examination report of April 26, 2006, and May 24, 2006, are

the same with the exce ption of notations on the May 24, 2006,

report of 5/23 near the present complaints section and the

section where areas of muscle spasms on the spine are noted. In

his follow - up report dated May 24, 2006, Dr. Christian wrote:

"Certainly today I see eviden ce of her continuing to have some

alterations of visual acuity . . ." . Dr. Christian testified

that he had incorrectly included the term "continuing" in this

statement. Dr. Christian's testimony is not credited. His

statement that the alterations of vis ual acuity were continuing

comports with M.M.'s mother's testimony that the first visual

testing was done on April 26, 2006, and the examination report

of April 26, 2006.

11. Based on the examination reports for April 26, 2006,

and May 24, 2006, there is no indication of what tests

Dr. Christian used to test M.M.'s vision nor is there any

indication of the exact nature of the problem with the right

eye. Dr. Christian's initial report does not mention the visual

acuity difference. His follow - up report of May 24, 2006, does

not indicate the difference that M.M. is experiencing with her

right eye. In his examination records of June 14, 2006, and

July 25, 2006, Dr. Christian notes: " R [circled] side vision

distance diff." In his final report of July 25, 2 006,

Dr. Christian noted as a current symptom, "[r]ight sided visual

alteration with peripheral." He listed as a diagnostic

impression: "Concussion with residual affecting peripheral

visual field on the right, persistent." However, contrary to

his final report, Dr. Christian testified at final hearing that

M.M.'s problem with her peripheral vision had improved.

12. On April 26, 2006, Dr. Christian's treatment plan

included the following treatment for M.M . three times a week for

four weeks: intersegmen tal traction, hot pack, and

neuromuscular release for the full spine; inferential,

alternating cervical to dorsal and dorsal to lumbar; full spine

massage; and full spine aqua treatment. The therapist assistant

was to determine which treatment modalities and areas to treat

at each treatment session. Dr. Christian signed each of the

daily treatment notes.

13. On April 26, 2006, Dr. Christian referred M.M. to

Dr. Kalin. According to Dr. Christian, Dr. Kalin had experience

in emergency rooms treating patie nts who had sustained trauma.

Dr. Christian wanted Dr. Kalin to look at the two lacerations

that M.M. had sustained. However, there were no outward signs

of infection of the lacerations , and the lacerations had healed.

Dr. Christian also wanted to deter mine if there was any post

concussion symptoms.

14. Dr. Kalin evaluated M.M. on May 1, 2006. His initial

diagnosis was that she had a "cervical musculoskel e tal

ligamentous strain" and a "[s]ubacute lumbosacral

musculoskeletal ligamentous strain." His ex amination did not

reveal any abnormality with M.M.'s vision. He did find that the

lacerations may leave permanent scarring.

15. In his interim report dated May 24, 2006,

Dr. Christian stated: "Dr. Kalin was not able to mention the

fact that she [M.M.] s truck her head or had laceration and

dizziness with nausea and vomiting following the impact." This

statement is contrary to what Dr. Kalin stated in his report.

Dr. Christian further noted in his report that he would follow -

up with Dr. Kalin to see if D r. Kalin had an addendum as to

whether there is addition al follow - up for post - concussion

symptomology.

16. In his report of May 1, 2006, Dr. Kalin did not make

any findings of a concussion or post - concussion syndrome. On

May 25, 2006, a staff member of CPS sent the following request

to Dr. Kalin:

Dr. Kalin,

Dr. Christian asked if you could please

make an addendum [sic] to your report on

[M.M.] for her concussion - post concussion

syndrome. Thanks!

Kimberly

Dr. Kalin replied: "pt had no symptoms of he adache or

memory/concentration when I saw her." No mention was made in

Dr. Christian's interim report dated May 25, 2006, that

Dr. Kalin did not find any evidence of post - concussion syndrome.

17. On May 1, 2006, Dr. Christian wrote a prescription for

hy drotherapy for M.M. for three times a week for four weeks.

M.M. received treatment at CPS on May 1, 2006. M.M. indicated

to the therapist that on a scale of one to ten that she rated

her low back pain and low back stiffness as a four and her neck

stiffne ss as a five. The therapist noted that there was

cervical and lumbar tenderness. M.M.'s treatment on May 1,

2006, consisted of hot therapy and hydrotherapy to the cervical,

thoracic, lumbar , and sacral areas, and intersegmental traction

to the cervical, thoracic , and lumbar areas.

18. X - rays of M.M.'s cervical and lumbar spine were

ordered . The radiologist who read the X - rays had the impression

that M.M. had a cervical muscle spasm and a lumbar muscle spasm.

19. On May 4, 2006, M.M. received treatment at CPS. She

rated her neck stiffness and low back stiffness as a three.

There was no notation of any tenderness by the therapist. M.M.

received the following treatment in the thoracic, lumbar, and

sacral areas: hot therapy, intersegmental traction, and

hydrotherapy.

20. On May 4, 2006, ultrasound studies were performed on

M.M. by Charles W. Hirt, M.D. (Dr. Hirt). Dr. Hirt's impression

was that there were findings that showed evidence of a left -

sided thoracic outlet syndrome.

21. On May 9, 2006, M.M. returned to CPS for treatment.

She rated her neck stiffness and lower back stiffness as a two.

The therapist noted that there was tenderness in the cervical

and lumbar areas. M.M. was given hot therapy, intersegmental

traction, and trigger point therapy in her cervical, thoracic,

and lumbar areas. She received myofascial release, massage, and

hy d rotherapy in her cervical, thoracic, lumbar, and sacral

areas.

22. On May 16, 2006, M.M. was treated at CPS. She rated

her neck stiffness as a one and her low back stiffness as a two.

The therapist noted tenderness in the lumbar area. The

treatment to M.M.'s cervical, thoracic, lumbar , and sacral areas

included intersegmental traction, trigger point therapy,

myofascial release , and massage. She was given int erferential

treatment to her lumbar and sacral areas and hot therapy to her

cervical, thoracic, and lumbar areas.

23. On May 18, 2006, M.M. presented for treatment at CPS.

She rated her neck and low back stiffness as a one. The

therapist did not note any tenderness. M.M. received the

following treatment in her cervical, thoracic, lumbar, and

sacral areas: hot therapy, intersegmental traction, trigger

point therapy, myofascial release, and massage.

24. On May 23, 2006, M.M. went to CPS for treatment. She

rated her lower back stiffness as zero. The therapist noted

tenderness in the cervical, thoracic, and lumbar areas. M.M.

was given a massage and myofascial release in her cervical,

thoracic, lumbar, and sacral areas. She received inferential

treat ment and trigger point therapy in her lumbar and sacral

areas and hot therapy and intersegmental traction in her

thoracic, lumbar, and sacral areas.

25. On May 24, 2006, Dr. Christian did a follow - up

examination of M.M. M.M. rated the neck and low er back

stiffness as zero. Dr. Christian noted in his follow - up report

that all the symptoms that he had noted in his initial report of

April 26, 2006, had improved. His follow - up report stated:

"Cerebellar function tests, as far as assessed are abnormal with

a positive Rhomberg test for possible concussion." His follow -

up report also stated: "Certainly today, I see evidence of her

continuing to have some alterations of visual acuity and a

positive Rhomberg, which would be consistent with post

concussion synd rome."

26. On May 25, 2006, M.M. returned to CPS for further

treatment. She rated her neck and low back stiffness as zero.

The therapist noted tenderness in M.M.'s cervical and lumbar

areas. M.M. was treated with myofascial release and massage in

her c ervical, thoracic, lumbar , and sacral areas. She received

trigger point therapy in her lumbar and sacral areas and

inferential treatment in her thoracic area. She also received

intersegmental traction in her thoracic, lumbar , and sacral

areas.

27. M.M. received treatment at CPS on May 30, 2006.

Again , she rated her neck and low back stiffness as zero. The

therapist did not note any tenderness. Hydrotherapy, hot

therapy, and intersegmental traction w ere provided to M.M. in

her cervical, thoracic, lumba r , and sacral areas. She received

inferential treatment in her lumbar and sacral areas.

28. On June 13, 2006, M.M. again returned to CPS for

treatment. She rated her neck and low back stiffness as zero.

The therapist noted tenderness in M.M.'s cervica l, thoracic, and

lumbar areas. M.M. received intersegmental traction, myofascial

release, and massage in her cervical, thoracic, lumbar, and

sacral areas. M.M. was given hot therapy in her thoracic,

lumbar, and sacral areas. She received trigger point t herapy in

her cervical and thoracic areas.

29. On June 14, 2006, M.M. presented at CPS for a follow -

up visit with Dr. Christian. She rated her neck and low back

stiffness as zero. He reduced her treatment to one per week for

the next four to five weeks. In his examination record of

June 14, 2006, Dr. Christian noted: " R [circled] side vision

distance diff."

30. On June 20, 2006, M.M. returned to CPS for treatment.

Again, she rated her neck and low back stiffness as zero. The

therapist did not note any tenderness. M.M. was given hot

therapy and intersegmental traction for her thoracic, lumbar,

and sacral areas. She was given hydrotherapy for her cervical,

thoracic, lumbar, and sacral areas.

31. On June 22, 2006, ultrasound studies were done on M.M .

by Dr. Hirt. His impression was that she likely had thoracic

outlet syndrome on the left side.

32. On May 24, 2006, Dr. Christian referred M.M. to

Dr. Davidson for a second opinion for post concussion.

Dr. Davidson examined M.M. on June 27, 2006. In his report

dated June 27, 2006, Dr. Davidson concluded that she had had a

mild concussion, a cervical strain, and a lumbosacral strain.

He recommended that her soft tissue therapy be discontinued.

Dr. Davidson did not find any abnormalities in M.M.'s vi sion.

33. On July 25, 2006, M.M. was examined by Dr. Christian.

M.M. rated her neck and low back stiffness as zero.

Dr. Christian noted the following in his final report dated

July 25, 2006.

If the patient's symptoms of altered visual

field persist and evaluation by an

op h thalmologist or a neuro - op h thalmologist

may be appropriate. If she begins to have

any difficulty with sleep, mood swings,

feelings of dizziness or persistent

headaches a neuro - psychiatric evaluation for

continued post concussion defic its may be

appropriate.

34. Dr. Christian discharged M.M. on July 25, 2006, and

M.M. was to return for treatment on an as needed basis.

35. Dr. Christian's initial report dated April 26, 2006;

interim report dated May 24, 2006; follow - up report dated

Ju ne 14, 2006; and final report dated July 25, 2006, were

dictated by Dr. Christian. The reports were being mailed to

someone or some entity based on the note at the end of each

report, which stated: "DICTATED BUT NOT PROOFREAD TO AVOID

DELAY IN MAILING." At the closing of each report, Dr. Christian

stated: "If I can be of further assistance in this regard,

please do not hesitate to contact me." It is not clear to whom

the reports were directed, but it is clear that the reports were

meant to convey the e xamination, evaluation , and treatment of

M.M. to the reader of the report. These reports did not

accurately report the examination results of M.M. in at least

two instances.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 & 120.57, Fla. Stat. (2011).

37. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Dep't of Banking & Fi n. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

38. The Department alleges that Dr. Christian violated

sections 460.413(1)(m), 460.413(1)(n), 460.413(1)(r), and

460.413(1)(ff), which provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(m) Failing to keep legibly written

chiropractic medical records that identify

clearly by name and credentials the licensed

chiropractic physician rendering, ordering,

supervising, or billing for each examination

or treatment procedure and that justify th e

course of treatment of the patient,

including, but not limited to, patient

histories, examination results, test

results, X rays, and diagnosis of a disease,

condition, or injury. X rays need not be

retained for more than 4 years.

(n) Exercising influe nce on the patient or

client for the purpose of financial gain of

the licensee or a third party.

* * *

(r) Gross or repeated malpractice or the

failure to practice chiropractic medicine at

a level of care, skill, and treatment which

is recogniz ed by a reasonably prudent

chiropractic physician as being acceptable

under similar conditions and circumstances.

The board shall give great weight to the

standards for malpractice in s. 766.102 in

interpreting this provision.

A recommended order by an ad ministrative law

judge, or a final order of the board finding

a violation under this section shall specify

whether the licensee was found to have

committed "gross malpractice," "repeated

malpractice," or "failure to practice

chiropractic medicine with that level of

care, skill, and treatment which is

recognized as being acceptable under similar

conditions and circumstances" or any

combination thereof, and any publication by

the board shall so specify.

* * *

(ff) Violating any provision of this

ch apter or chapter 456, or any rules adopted

pursuant thereto.

39. The Department also alleges that Dr. Christian

violated rule 64B2 - 17.0065, which provides:

(1) These standards apply to all licensed

chiropractic physicians and certified

chiropractic assi stants. These standards

also apply to those examinations advertised

at a reduced fee, or free (no charge)

service.

(2) Medical records are maintained for the

following purposes:

(a) To serve as a basis for planning

patient care and for continuity in the

evaluation of the patientÓs condition and

treatment.

(b) To furnish documentary evidence of the

course of the patientÓs medical evaluation,

treatment, and change in condition.

(c) To document communication between the

practitioner responsible for the patient and

any other health care professional who

contributes to the patientÓs care.

(d) To assist in protecting the legal

interest of the patient, the hospital, and

the practitione r responsible for the

patient.

(3) The medical record shall be legibly

maintained and shall contain sufficient

information to identify the patient, support

the diagnosis, justify the treatment and

document the course and results of treatment

accurately, by including, at a minimum,

patient histories; examination results; test

results; records of drugs dispensed or

administered; reports of consultations and

hospitalizations; and copies of records or

reports or other documentation obtained from

other health care practitioners at the

request of the physician and relied upon by

the physician in determining the appropriate

treatment of the patient. Initial and

follow - up services (daily records) shall

consist of documentation to justify care. If

abbreviations or symbols are used in the

daily recordkeeping, a key must be provided.

(4) All patient records shall include:

(a) Patient history,

(b) Symptomatology and/or wellness care,

(c) Examination finding(s), including X -

rays when medically or clinically indicated,

(d) Diagnosis,

(e) Prognosis,

(f) Assessment(s),

(g) Treatment plan, and

(h) Treatment(s) provided.

(5) All entries made into the medical

records shall be accurately dated. The

treating physician must be readily

identifiable either by signature, initials,

or printed name on the record. Late entries

are permitted, but must be clearly and

accurately noted a s late entries and dated

accurately when they are entered into the

record.

(6) Once a treatment plan is established,

daily records shall include:

(a) Subjective complaint(s)

(b) Objective finding(s)

(c) Assessment(s)

(d) Treatment(s) provided, an d

(e) Periodic reassessments as indicated.

(7) In situations involving medical

examinations, tests, procedures, or

treatments requested by an employer, an

insurance company, or another third party,

appropriate medical records shall be

maintained by the physician and shall be

subject to Section 456.057 , Florida

Statutes. However, when such examinations,

tests, procedures, or treatments are

pursuant to a court order or rule or are

conducted as part of an independent medical

examination pursuant to Section 440.13 or

627.736(7), Florida Statutes, the reco rd

maintenance requirements of Section 456.057,

Florida Statutes, and this rule do not

apply. Nothing herein shall be interpreted

to permit the destruction of medical records

that have been made pursuant to any

examination, test, procedure, or treatment

e xcept as permitted by law or rule.

(8) Provided the Board takes disciplinary

action against a chiropractic physician for

any reason, these minimal clinical standards

will apply. It is understood that these

procedures are the accepted standard(s)

under t his chapter.

40. In Count One of the Administrative Complaint, the

Department alleges that Dr. Christian violated sections

460.413(1)(m) and 460.413(1)(ff) and rule 64B2 - 17.0065 as set

forth in paragraph 44 of the Administrative Complaint in one or

more of the following ways:

(a) By failing to clearly note whether he

actually tested M.M.'s cranial nerves or

cerebellar function as part of the initial

examination;

(b) By failing to record or maintain notes

indicating the he performed ocular testing

of patient M.M. including gaze, nystagmus,

or funduscopic evaluation when she first

presented for treatment;

(c) By failing to record or maintain the

trajectory of radiation with respect to the

foraminal compression and axial loading

tests;

(d) By failing to explain in the patient

notes the discrepancy between his

recommendation that patient M.M. avoid

strenuous activities and his request for

patient M.M. to complete a functional

capacity assessment;

(e) By failing to document the medical

necessity of th e functional capacity

assessment ordered by Respondent for patient

M.M. on or about April 26, 2006;

(f) By failing to document the medical

necessity of the May 1, 200 6 , evaluation

conducted [by] a medical doctor;

(g) By failing to explain why patient M .M.

was only provided chiropractic adjustment on

May 24 and July 15, 2006;

(h) By failing to document any information

regarding follow - up or compliance with

respect to the medical doctor's

recommendation that patient M.M. perform

therapeutic exercises or use a cervical

pillow;

(i) By failing to adequately describe the

patient M.M.'s subjective or objective

symptoms in the daily treatment notes;

(j) By failing to adequately describe the

treatment provided to patient M.M. in the

daily treatment notes;

(k) By failing to record or maintain daily

treatment notes that justified the totality

of the care provided to patient M.M.;

(l) By failing to record patient notes

which justify the medical necessity for the

functional capacity assessment conducted on

o r about May 24, 2006;

(m) By failing to record or maintain notes

that justify the medically necessity of the

June 27th, 2006, evaluation completed by a

medical doctor; or,

(n) By failing to further evaluate or

document the extent of patient M.M.'s vis ual

alteration.

4 1 . The Department did not present evidence on items (a),

(b), (c), (d), (e), (g), (h), and (l). Thus, the Department has

failed to establish those allegations.

4 2 . The Department failed to establish by clear and

convincing evidence that Dr. Christian failed to record or

maintain notes that justified the medical necessity of the

evaluations by Dr. Kalin and Dr. Davidson. The records do

indicate that there was a possibility that M.M. may have had

a mild concussion, and this diagnosis is supported by

Dr. Davidson's evaluation. However, it should be noted that the

medical records do not indicate what treatment was provided for

a concussion.

4 3 . The Department has failed to establish by clear and

convincing evidence that Dr. Christian f ailed to record what

treatments were provided to M.M. The record accurately reflects

the treatments that were provided.

4 4 . The Department has established by clear and convincing

evidence that Dr. Christian failed to record or maintain daily

treatment no tes that justified the totality of the care provided

to M.M. On May 30, 2006 , and June 20, 2006, the daily treatment

notes do not show any subjective findings or objective findings

that would justify the treatment provided. There were no notes

indicating why treatment was provided in the areas in which the

treatment was given. Dr. Christian left the determination of

the areas of treatment to his assistant, but the records do not

include the justification for the treatment areas that were

chosen. The Dep artment has established by clear and convincing

evidence that Dr. Christian violated section s 460.413(1)(m) and

460.413(1)(ff) by violating rule 64B2 - 17.0065(3), which requires

that daily records justify the treatment that is provided.

4 5 . The Department has established by clear and convincing

evidence that Dr. Christian failed to accurately describe the

hyperabduction test results on his initial examination report of

April 26, 2006. His noting that the hyperabduction test results

were positive on the in itial examination report created an

inconsistency in the medical records so that it would be

impossible to tell from the medical records whether the

hyperabduction test was negative or positive. The Department

has established by clear and convincing evide nce that

Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff)

and rule 64B2 - 17.0065(3).

46 . The Department has established by clear and convincing

evidence that Dr. Christian failed to document the extent of

M.M.'s vision alteration. Although he noted on his April 26,

2006, examination that M.M. had a vision problem, he does not

indicate that the problem with M.M.'s visual deals with her

peripheral vision until three months later when he writes his

final report. His examination report prior t o the July 25,

2006, report are not sufficient to document the results of his

examination of M.M.'s vision. He indicates in his final report

that her visual problem is persistent but testifies that her

visual problem had improved. Neither Dr. Davidson no r Dr. Kalin

found any difficulties with M.M.'s vision. The final report

does not accurately reflect that M.M.'s vision problem had

improved. The Department has established by clear and

convincing evidence that Dr. Christian violated

sections 460.413(1)(m ) and 460.413(1)(ff), by violating

rule 64B2 - 17.0065(3) and (4)(c).

47 . In Count Two of the Administrative Complaint, the

Department alleges that Dr. Christian violated section

460.413(1)(n) as set forth in paragraph 50 of the Administrative

Complaint in one or more of the following ways:

(a) By conducting a functional capacity

assessment of patient M.M. on or about April

26, 2006, without sufficient patient records

that justified the necessity [of] the

assessment;

(b) By billing patient M.M.'s insuranc e

company separately for detailed evaluation

and functional capacity assessment both

conducted o n or about April 26, 2006, even

though the assessment is included as part of

the evaluation;

(c) By referring patient M.M. for

evaluation that was conducted by a medical

doctor on or about May 1, 2006, without

sufficient patient record[s] that justified

the necessity of evaluation;

(d) By charging patient M.M.'s insurance

company for numerous treatment modalities

without medical records sufficient to

justify their necessity;

(e) By conducting a functional capacity

assessment of patient M.M. on or about May

24, 2006, without sufficient patient records

that justified the necessity [of] the

assessment;

(f) By billing patient M.M.'s insurance

company separate ly for detailed re -

evaluation and a functional capacity

assessment both conducted on or about May

24, 2006, even though the assessment is

included as part of the evaluation; or

(g) By referring patient M.M. for

evaluation that was conducted by a medical

doctor on or about June 27, 2006, without

sufficient patient record[s] that justified

the necessity of the evaluation.

The Department did not present any evidence of the allegations

contained in (a), (e), and (f). Thus, the Department has failed

to estab lish those allegations. The Department failed to

establish by clear and convincing evidence that the referrals to

Dr. Kalin and to Dr. Davidson were not based on records that

justified the referral. The Department has failed to establish

by clear and co nvincing evidence the remaining allegations

dealing with billings to insurance companies.

48 . In Count Three of the Administrative Complaint, the

Department alleges that Dr. Christian violated section

460.413(1)(r), in one or more of the following actions:

(a) By failing to record that he performed

ocular testing of patient M.M. including

gaze, nystagmus, or funduscopic evaluation

when she first presented for treatment; or

(b) By failing to refer patient M.M. for an

evaluation by a visual special ist based on

her continued complaints of visual problems.

The Department did not present evidence concerning the

allegation in (a) and, thus, has failed to establish that

allegation. The Department failed to establish by clear and

convincing evidence tha t Dr. Christian should have refer red M.M.

to a visual specialist concerning her visual problems. Both

Dr. Kalin and Dr. Davidson checked M.M.'s vision and did not

find any problems. It is not clear from the evidence presented

that M.M. was continuing to have visual problems after seeing

Dr. Davidson or if Dr. Christian's records were just recording

what he had found in the past.

49. On October 31, 2011, Respondent filed Respondent's

Motion for Award of Costs and Attorney's Fees, stating that

Petitioner h ad filed portions of the Administrative Complaint

for an improper purpose , and, pursuant to section 120.595(1),

Florida Statutes (2011), Petitioner was entitled to attorney's

fees and costs for the defense of those portions of the

Administrative Complaint. Section 120.595(1)(e)1., Florida

Statutes (2011) , defines "improper purpose" as "participation in

a proceeding pursuant to s. 120.57(1) primarily to harass or to

cause unnecessary delay or for frivolous purpose or to

needlessly increase the cost of litig ation, licensing, or

securing the approval of an activity." Having considered the

case in its totality, it is found that the Department did not

participate in this case to harass, to cause unnecessary delay,

for a frivolous purpose, or to needlessly incre ase the cost of

litigation. Therefore, the motion for attorney's fees and costs

is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Dr. Christian violated s ections 460.413(1)(m) and

460.413(1)(ff) and rule 64B2 - 17.0065; finding that Dr. Christian

did not violate sections 460.413(1)(n) and 460.413(1)(r);

imposing an administrative fine of $2,500; placing Dr. Christian

on probation for one year; and requiring D r. Christian to attend

a continuing education course on record - keeping.

DONE AND ENTERED this 15th day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 15th day of November , 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 version.

2/ There were two paragraphs in Count One numbered as 44.

Counsel for the Department was referring to the second paragraph

numbered 44.

COPIES FURNISHED :

Michael R. Lowe, Esquire

Jack T. Cook, Esquire

Michael R. Lowe, P.A.

2180 West State Road 434, Suite 1124

Longwood, Florida 32779

Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 32 65

Nicholas Romanello , General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Bruce Deterding, Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 07

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 Recommended Order should be filed with the agen cy that

will issue the Final Order in this case.