97-005960 Board Of Chiropractic vs. Douglas N. Graham Status: Closed Recommended Order on Wednesday, August 5, 1998.

Summary: Chiropractic physician guilty of malpractice for failure to cease care of patient when it became apparent his ailment exceeded physician's ability and authorization to treat.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) Case No. 97-5960

)

DOUGLAS N. GRAHAM, D.C., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

June 2, 1998, in Marathon, Florida.

APPEARANCES

For Petitioner: Thomas Wright, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317

For Respondent: E. Renee Alsobrook, Esquire

Alsobrook & Dove, P.A.

Post Office Box 10426

Tallahassee, Florida 32302-2426

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 30, 1996, the Agency

for Health Care Administration charged Respondent, a licensed

chiropractic physician, with perceived violations of Section

460.413, Florida Statutes, in his care of two patients (referred

to in the complaint as B. D. and K. E.). The complaint alleged,

as follows:

FACTS PERTAINING TO PATIENT B.D.

4. At all times material hereto,

Respondent provided patient B.D. with

chiropractic and nutritional care.

5. On or about November 7, 1993,

Respondent conducted an initial examination

of patient B.D.

6. Respondent's initial examination of

patient B.D. was not complete or adequate for

evaluating the patient.

7. On or about November 7, 1993,

Respondent's treatment plan for B.D. included

light massage, muscle release, adjustments,

and fasting.

8. From on or about November 7, 1993, to

on or about November 16, 1993, Respondent's

fasting regime for patient B.D. consisted of

a water-only diet.

9. Respondent's records for B.D. state

that on November 16, 1993, patient B.D. broke

the fast when he consumed diluted fruit

juice.

10. Respondent's records for B.D. state

that on November 23, 1993, patient B.D. was

allowed solid food.

11. Respondent's records indicate that

patient B.D. suffered extreme weight loss and

that his overall condition was deteriorating.

12. On or about December 7, 1993,

Respondent telephoned 911, to have patient

B.D. transported to the emergency room of

Fisherman's Hospital.

13. Patient B.D.'s records failed to

indicate the medical necessity or

justification of the treatment rendered to

the patient.

COUNT I

14. Petitioner realleges and incorporates

paragraphs one (1) through thirteen (13), as

if fully stated herein.

15. Based on the foregoing, Respondent has

violated Section 460.413(1)(m), Florida

Statutes, by failing to keep written

chiropractic records justifying the course of

treatment of the patient, including, but not

limited to, patient histories, examination

results, test results, x-rays, diagnosis of a

disease, condition, or injury.

COUNT II

16. Petitioner realleges and incorporates

paragraphs one (1) through thirteen (13), as

if fully stated herein.

17. Based on the foregoing, the Respondent

has violated Section 460.413(1)(r), Florida

Statutes, by gross or repeated malpractice or

the failure to practice chiropractic at a

level of care, skill, and treatment which is

recognized by a reasonably prudent

chiropractic physician as being acceptable

under similar conditions and circumstances.

COUNT III

18. Petitioner realleges and incorporates

paragraphs one (1) through thirteen (13), as

if fully stated herein.

19. Based on the foregoing, the Respondent

has violated Section 460.413(1)(v), Florida

Statutes, through violation of

Rule 59N-17.0065, Florida Administrative

Code, by failing to maintain adequate patient

records.

FACTS PERTAINING TO PATIENT K.E.

20. At all times material hereto,

Respondent provided patient K.E. with

chiropractic treatment and nutritional care.

21. On or about December 7, 1992, patient

K.E. completed a case history form.

22. Respondent's records for patient K.E.

do not indicate that an examination or

evaluation was performed.

23. Respondent placed patient K.E. on a

two (2) week fast, consisting of water intake

only.

24. Sometime in or around January 1993,

Respondent placed patient K.E. on a diet

regime consisting of raw fruit and

vegetables.

25. Patient K.E. suffered extreme weight

loss and her overall condition deteriorated.

26. Respondent's records for K.E. do not

indicate the medical necessity or

justification of the treatment rendered to

the patient.

COUNT IV

27. Petitioner realleges and incorporates

paragraphs one (1) through three (3) and

paragraphs twenty (20) through twenty-six

(26), as if fully stated herein.

28. Based on the foregoing, Respondent has

violated Section 460.413(1)(m), Florida

Statutes, by failing to keep written

chiropractic records justifying the course of

treatment of the patient, including, but no

limited to, patient histories, examination

results, test results, x-rays, diagnosis of a

disease, condition or injury.

COUNT V

29. Petitioner realleges and incorporates

paragraphs one (1) through three (3) and

paragraphs twenty (20) through twenty-six

(26), as if fully stated herein.

30. Based on the foregoing, the Respondent

has violated Section 460.413(1)(r), Florida

Statutes, by gross or repeated malpractice or

the failure to practice chiropractic at a

level of care, skill, and treatment which is

recognized by a reasonably prudent

chiropractic physician as being acceptable

under similar conditions and circumstances.

COUNT VI

31. Petitioner realleges and incorporates

paragraphs one (1) through three (3) and

paragraphs twenty (20) through twenty-six

(26), as if fully stated herein.

32. Based on the foregoing, the Respondent

has violated Section 460.413(1)(v), Florida

Statutes, through violation of

Rule 59N-17.0065, Florida Administrative

Code, by failing to maintain adequate patient

records.

For such violations, the agency proposed that one or more of

the following penalties be imposed:

[R]evocation or suspension of the

Respondent's license, imposition of an

administrative fine not to exceed $1,000 for

each count, issuance of a reprimand,

placement of the chiropractic physician on

probation for a period of time and subject to

such conditions as the Board may specify,

including requiring the chiropractic

physician to submit to treatment, to attend

continuing education courses, to submit to

reexamination, or to work under the

supervision of another chiropractic

physician.

Respondent disputed the factual allegations contained in the

complaint and, under cover letter of December 19, 1997, the

agency referred the matter to the Division of Administrative

Hearings for the assignment of an administrative law judge to

conduct a formal hearing pursuant to Sections 120.569, 120.57(1),

and 120.60(5), Florida Statutes. Consistent with the provisions

of Chapter 96-403, Sections 8 and 24, Laws of Florida, the

Department of Health was substituted as the agency in interest in

these proceedings.

At hearing, Petitioner called as witnesses: the patient

K. E. (now known by her maiden name K. M.); Thomas F. Daniels, an

agency investigator; Robert Butler, Jr., D.C., accepted as an

expert in chiropractic care; and the Respondent. Petitioner's

Exhibits 1 through 13 and 15 were received into evidence, subject

to the limitations noted on the record. 1 Respondent testified on

his own behalf, but offered no additional proof.

The hearing transcript was filed July 6, 1998, and the

parties were initially accorded until July 17, 1998, to file

proposed recommended orders; 2 however, at Respondent's request

(and with Petitioner's agreement) the time to file proposed

recommended orders was extended to August 4, 1998. Consequently,

the parties waived the requirement that a recommended order be

rendered within 30 days after the transcript has been filed.

Rule 28-106.216(2), Florida Administrative Code. The parties

elected to file such proposals and they have been duly

considered.

FINDINGS OF FACT

Respondent's licensure and practice

1. Respondent, Douglas N. Graham, is now, and was at all

times material hereto, licensed as a chiropractic physician by

the State of Florida, having been issued license number

CH 0005483.

2. At all times pertinent, Respondent operated two

businesses associated with the practice of chiropractic. The

first business, a typical chiropractic practice, was operated

under the name Action Chiropractic, and was located in a small

office building at 8095 Overseas Highway, Marathon, Florida. The

second business, known as Club Hygiene, promoted a hygienic

(nutritionally sound) lifestyle based on the consumption of

uncooked fruit and vegetables, nuts and seeds. As part of the

regime at Club Hygiene, fasting (to detoxify the body) was also

promoted as an avenue to better health.

3. Club Hygiene was located in Respondent's two-story home

at 105 Bruce Court, Marathon, Florida. The ground floor, where

the patients (or guests, as they were referred to at Club

Hygiene) resided, consisted of three bedrooms, one bathroom, a

small recreation room or area, and a porch for dining. Each

bedroom contained two beds, allowing a maximum capacity of six

guests. On the second level was Respondent's residence, which he

shared with up to three "interns," 3 who cared for the guests.

4. The instant case primarily involves concerns voiced by

Petitioner regarding the care of two patients (K. E. and B. D.)

at Club Hygiene in 1993. Regarding those concerns, Petitioner

questioned whether Respondent's record keeping met minimum

standards and whether Respondent's treatment met the prevailing

standard of care.

The K. E. affair

5. On December 7, 1992, K. E. presented as a walk-in at

Respondent's chiropractic clinic, Action Chiropractic, for a free

consultation to address whether she could benefit from

chiropractic care. At the time, K. E., a female, was 25 years of

age (date of birth March 7, 1967), 5'6" tall, and weighed 105

pounds.

6. On presentation, K. E. filled out a case history sheet

which detailed her present and past symptoms, as follows:

occasional dizziness and headache; occasional pain between

shoulders; frequent constipation and difficult digestion, with

occasional pain over stomach; occasional colds, ear noises, and

sore throat; occasional skin eruptions (rash); occasional

frequent urination; and, occasional cramps or backache and

vaginal discharge, with frequent irregular menstrual cycle.

History further revealed an injury to a "muscle in back" over

5 years previous. Personal habits reflected a light appetite, as

well as light use of alcohol and drugs. Exercise and sleep

habits were noted as moderate. When asked to describe her major

complaints and symptoms, K. E. responded, "They said I had

scoliosis when I was young. I'm curious if it still is there."

The date symptoms were first noticed was stated to be "middle

school."

7. K. E.'s visit with Respondent lasted about twenty

minutes, and included a brief spinal check, as well as a

discussion regarding diet and nutrition. Respondent apparently

told K. E. she would benefit from chiropractic care; however,

neither the patient record nor the proof at hearing reveal the

results of his examination, diagnosis, prognosis, or any

treatment plan.

8. Due to a lack of funds, K. E. declined further

chiropractic care. At the time, or shortly thereafter,

Respondent offered K. E. the opportunity to become an "intern" at

Club Hygiene. The Internship Agreement entered into by

Respondent and K. E. on January 18, 1993, provided as follows:

The internship will last for a period of

. . . 6 months . . . beginning on MONDAY,

JANUARY 18TH , 1993 and ending on SUNDAY,

JULY 18th , 1993.

The company will provide the Intern with

room, board, and the opportunity for hands-

on, first-hand experience in the day-to-day

operation of a hygienic retreat, supervision

of fasting patients, and hygienic living.

The Intern will provide the Company with

their full-time efforts in the operation of

the retreat in the manner determined by the

company and in fitting with all reasonable

rules and guidelines to be enforced by the

company . . . .

As an inducement to complete the internship, interns were

apparently rewarded with a supervised fast at the end of their

term.

9. When K. E. joined the staff of Club Hygiene in January

1993, she was one of three interns who cared for the patients

(guests). Also on staff, and working under Respondent's

supervision, was Tim Trader (referred to as Drader in these

proceedings), a unlicensed naturopathic physician. 4

10. As an intern, K. E. changed the guests' linen, cleaned

the guest bathroom, assisted with food preparation and, on a

rotating basis with the other interns, dined with the guests.

Each morning, K. E. also took the guests' blood pressure, and

noted their vital signs.

11. When K. E. began work at the club she was suffering

health problems and, more particularly, stomach trouble

(difficult digestion and pain) and constipation. To assist her,

Respondent recommended various diets, and K. E., at Respondent's

recommendation, moved from eating predominantly cooked foods to

raw natural foods; however, her stomach troubles persisted, and

by April 1993 her weight had dropped to about 92 pounds.

12. In April 1993, on the advise of Drader and with the

concurrence of Respondent, K. E. started a fast, water only, as a

means to address her health problems. There is, however, no

evidence that K. E. was physically examined prior to fasting,

although at some point Respondent apparently suggested that "she

had severe problems, including but not limited to, malabsorption

syndrome, leaky gut syndrome, potential hiatal hernia and

resultant malnutrition." Moreover, apart from the meager patient

record of K. E.'s office visit in December 1992, there is no

patient record or other documentation (evidencing patient

history, symtomatology, examination, diagnosis, prognosis, and

treatment) to justify the care (diet and fasting) offered K. E. 5

13. K. E. fasted for two weeks and by the end of the fast

her weight was approximately 87 pounds. During the fast,

Respondent was frequently out-of-town; however, K. E. was

supervised by Drader, who assured her vital signs were

regularly taken. 6

14. Following the fast, K. E.'s health continued to

deteriorate, and her weight dropped to approximately 77 pounds.

She became concerned and sought to consult with Frank Sabatino,

D.C., another "hygienic physician." Ultimately K. E. was seen by

Dr. Sabatino, and also a medical doctor; however, their findings

are not of record. Moreover, there was no proof offered at

hearing regarding the nature of K. E.'s disorder, whether (given

the nature of the disorder) a fast was or was not appropriate,

whether the fast caused or contributed to any injury, or what

subsequent care (if any) K. E. required. As of the date of

hearing, to a lay observer, her appearance evidenced good health.

15. To address whether Respondent's treatment met the

prevailing standard of care, Petitioner offered the opinions of

two chiropractic physicians, Bruce I. Browne, D.C., and Robert S.

Butler, Jr., D.C. 7 It was Dr. Browne's opinion that the care

Respondent offered K. E., including the supervision (albeit not

personal) provided for her fasting, met the prevailing standard

of care, but that Respondent failed to maintain patient records

that justified the course of treatment. Dr. Butler agreed the

patient records were inadequate, but was also of the opinion that

Respondent's care failed to meet the prevailing standard of care

because he authorized a fast without first performing a complete

examination to resolve whether K. E.'s condition was appropriate

for a fast, or stated otherwise, whether she was physically

capable of withstanding the stress of a fast. Respondent

admitted, at hearing, that he had not done any examination that

would permit him to appropriately treat K. E.

16. Given the proof, it must be concluded that Respondent

failed to maintain patient records regarding K. E. that justified

her course of treatment. It must also be concluded that by

approving a fast without an adequate examination, Respondent's

care of K. E. fell below the prevailing standard.

The B. D. affair

17. In or about early November 1993, B. D., a male, and

resident of the State of Washington, telephoned Respondent to

arrange a visit. At the time, according to Respondent, B. D. had

been hospitalized for two or three weeks and "wanted out." 8

Respondent agreed. 9

18. B. D. arrived at Club Hygiene on November 7, 1993. At

the time, he was 37 years of age (date of birth June 5, 1956),

5' 9 1/2" tall, weighted 115 pounds, and was in extremely poor

health. He was also HIV positive, and had developed acquired

immune deficiency syndrome (AIDS). 10

19. On presentation, as reflected by his case history,

B. D. expressed to Respondent the fear or thought that he was

dying, and related the following major complaints and symptoms:

anal infection, frequent diarrhea, weight loss, inability to

assimilate food, fatigue, and loss of energy. At the time, B. D.

had been fasting for 1 1/2 days.

20. Examination confirmed the presence of an anal infection

(thought to be fungal in origin) oozing clear fluid, and further

noted, inter alia , an irritated nose and throat (slight redness),

and that the upper cervical and lower lumbar were tender and

fixated. Heart was noted to be clear and strong, and the lungs

were noted to be clear in all four quadrants. The only

recommendation reflected by the patient records relates to the

observation concerning the upper cervical and lower lumbar, and

reads as follows: "Daily light massage, muscle release, and

gentle specific adjustments. P[atien]t concerned about overall

health. Monitor closely."

21. B. D. continued his fast (water only) until

November 16, 1993 (when he consumed diluted apple and celery

juice), and Respondent monitored his progress on a daily basis.

(Petitioner's Exhibit 5). The progress notes reflect a weight

loss from 115 pounds to 102 1/2 pounds during the course of the

fast, but no untoward occurrence.

22. B. D. apparently continued on a juice diet until

November 23, 1993, when he was reintroduced to solid food. By

that date, B. D.'s weight was noted to have dropped to 100

pounds.

23. On November 24, 1993, B. D.'s blood pressure was noted

as 88/62 and his pulse/respiration as 74/20. He was also noted

to be fatigued and he rested all day. Between November 24, 1993,

and November 28, 1993, the only entry appears to be for

November 26, 1993, when B. D.'s blood pressure is noted to be

100/70s.

24. By November 28, 1993, B. D.'s blood pressure was noted

to have fallen to 66/50 and his pulse/respiration was noted as

80/20. No entry appears for blood pressure or pulse/respiration

on November 29; however, there was an entry that B. D. was

"experiencing problem breathing." A morning entry on November

30, 1993, noted "Ronci in all 4 Quads.-very slight. Breathing

extremely labored." Blood pressure was noted as 62/42 and

pulse/respiration as 80/28.

25. Respondent's progress notes contain no entries for

December 1, 1993. On December 2, 1993, the notes reflect

"Breathing labored still." Pulse/respiration was recorded as

80/32; however, no blood pressure reading was noted. There are

no entries for December 3, 1993.

26. On December 4, 1993, blood pressure was recorded as

62/44 and pulse/respiration as 92/32. B. D. was noted to be very

fatigued. No entries appear on December 5, 1993, and on

December 6, 1993, at 5:00 p.m., B. D.'s blood pressure is noted

as 62/52 and pulse/respiration as 100/weak. B. D. is again noted

as very fatigued, and his weight is recorded as 95 1/4 pounds.

No entries appear for December 7, 1993.

27. At 11:08 p.m., December 7, 1993, Monroe County

Emergency Services were summoned to Club Hygiene by a 911

telephone call, and they arrived at 11:15 p.m. The EMT's

(emergency medical technician's) report reflects that for past

medical history they were advised that B. D. was HIV positive,

and for chief complaint they were advised "Breathing diff[iculty]

- Family states onset 1 w[ee]k, gett ing progressively worse." At

11:20 p.m., blood pressure was noted as 109/53 and

pulse/respiration was noted as 113/40. B. D. was transported to

Fishermens Hospital and he was admitted through the emergency

room at 11:36 p.m.

28. B. D. remained at Fishermens Hospital until

December 20, 1993, when he was transferred to Lower Florida Keys

Health System for further studies and treatment. The discharge

summary from Fishermens Hospital reveals his course as follows:

This is 37 year old male who presents to

the Emergency Room with dyspnea, weakness for

the past several days, states he has been

visiting from the state of Washington with

his mother and became ill while in the area.

His past medical history is negative for

previous hospitalization accept (sic) for

surgery for right inguinal hernia he states

he was found to be HIV positive seven years

ago but has been in good health until

recently. Family history is negative for TB,

diabetes, cancer, and cardiac disease, he has

no known allergies, he is single, he has been

a heavy abuser of alcohol in the past until

four years ago. In the past he worked as an

investment consultant with Japan, he does not

smoke, he uses no drugs except an occasional

marijuana. He states he knows no known risks

for AIDS and does not know how he contacted 11

it.

Review of systems denies any illness prior

to be the past few weeks, prior to this

admission, he states he is confused regarding

his past medical history and does'nt (sic)

know how he became HIV positive.

Physical examination revealed emaciated 37

year old male who is on a non rebreather

oxygen mask. His skin is warm and dry,

pupils are equal and regular and react

normally to light in accomidation (sic).

Teeth are negative. Tembranic membrane is

normal. Neck is subtle there is no cervical

adenopathy, thyroid is smooth without

enlargement, he has rales in both lungs over

the entire parietal with respirations of 36

per minute, no wheezing is heard, his pulse

is 92, regular sinus rhythm, there are no

murmurs. Abdomen is soft without masses.

Heart tenderness, there was no peripheral

edema. Penial pulses are present. He is

alert, although he is slightly confused

regarding his recent medical history.

Reflexes were equal, there is no vocal motor

weakness.

* * *

Chest x-ray at the time of admission showed

pulmonary edema, possibly non-cardiac follow

up chest x-ray showed evidence of diffuse

infiltrates involving the right lung and also

the left lower lobe consistent with

pneumocystis carinii pneumonia with evidence

of bilateral pulmonary edema. Follow up

chest x-ray showed increased . . . desity in

the right lung infiltrate and progression of

infiltrates to the left mid and lower lung

fields with air bronchograms and air

alveolgrams Indicating alveolar infiltrates.

EKG abnormal record to the extreme right axis

deviation, poor R wave progression, sinus

tachycardia.

Patient was seen in consultation by

Dr. Halterman in the event that his

respiratory status required intubation,

however he never did require this.

* * *

He was treated in ICU, he developed a

pneumothorax, spontaneous pneumothorax and

was seen by Dr. Mankowitz for insertion of a

chest tube, because of failure to show

improvement arrangements were made for

transfer to Key West for further studies and

treatment and possible Phentolamine,

Phetamadine.

His condition upon transfer is poor.

Prognosis is poor.

FINAL DIAGNOSIS: Respiratory failure,

secondary to diffused alveolar infiltrates,

probable pneumocystis carinii pneumonia.

Spontaneous pneumothorax, adult immune

deficiency syndrome.

29. B. D. was admitted to Lower Florida Keys Health System,

Key West, Florida, at 2:50 p.m., December 20, 1993. Thereafter,

his condition deteriorated, and at 9:17 p.m., December 26, 1993,

he was pronounced dead. The death summary notes an admitting and

final diagnosis as follows:

ADMITTING DIAGNOSIS: Pneumonia

FINAL DIAGNOSIS: Pneumonia, HIV infection,

respiratory failure,

respiratory complications,

emphysema, cachexia

Cause of death, as stated on the Certificate of Death, was

cardiopulmonary failure, as a consequence of pneumonia, due to

acquired immune deficiency syndrome (AIDS).

30. To address whether Respondent's care for B. D. met the

prevailing standard of care, as well as whether his records

conformed to the minimum requirements of law, Petitioner again

called upon Doctors Browne and Butler.

31. With regard to the adequacy of Respondent's patient

records, Doctors Browne and Butler concur, and observe that with

regard to B. D., the patient records failed to conform with the

minimum requirements of law (they failed to include a diagnosis

or a treatment plan) and, therefore, failed to justify the course

of treatment. Given the record, the opinions of Doctors Browne

and Butler regarding the inadequacy of Respondent's records, as

they relate to B. D., are credited.

32. With regard to whether Respondent's treatment met the

prevailing standard of care, Doctors Browne and Butler offer

somewhat differing opinions. Dr. Browne was of the opinion that

Respondent's treatment met the prevailing standard until

November 30, 1993, when B. D.'s breathing was noted to be

extremely labored. At that time, according to Dr. Browne,

prevailing practice required Respondent, as a chiropractor, to

cease treating B. D. and to advise him to seek relief from

another practitioner who possessed the requisite skill,

knowledge, and facilities to treat his ailment properly. In

Dr. Butler's opinion, Respondent should have c alled for a chest

x-ray, and his failure to do so failed to meet the prevailing

standard of care. 12

33. Respondent explained his reaction to B. D.'s congestion

and labored breathing, as follows:

Q. What did you do, you noted he was

congested?

A. I suggested he go to a hospital.

Q. And his response?

A. He did not want to go to a hospital. He

wanted to wait it out, and I said you can

wait at my house. But if you go down hill,

you have to go to a hospital.

Q. Is that what happened?

A. Yeah. He started to become ever so

slightly synodic (sic), meaning that he was

breathing but he wasn't getting lots. His

fingertips were starting to turn blue.

* * *

Q. Did you discuss with him at this time a

need to get additional care?

A. I discussed it with him many times,

because this was not, this was not in my

league. It was not in my scope. It was not

- I did not have access to the tools even if

I knew how to treat a man at this point.

Those are my concerns for Brian. And,

finally, I said, Brian, look, you have to

trust my judgment, you go to the hospital

whether you want to or not.

Q. Who called for the ambulance?

A. I have no idea.

* * *

Q. Did you consider the need for an x-ray

when you saw Brian's breathing become

labored?

A. No.

Q. Did you make any suggestions to him at

the time you noted his breathing had become

labored?

A. When it became labored?

Q. Yes, sir.

A. Not that I'm aware of saying anything to

him. No. I don't believe so.

(Transcript, pages 174, 175, and 177).

34. Having considered the proof, Dr. Browne's opinion is

accepted as most compelling and provides the most complete

description of the breadth of Respondent's obligations, as well

as the scope of his breach. On the other hand, Dr. Butler's

opinion (that the circumstances required a referral for chest

x-ray) has not been rejected; however, Respondent's failure to

refer for x-ray (when he realized B. D.'s condition was beyond

his knowledge or the methods of treatment available to him) is

viewed as a failing subsumed within his breach of the prevailing

standard which required that Respondent cease treating B. D. and

refer him to another physician who possessed the requisite skill,

knowledge, and facilities to treat his ailment properly. 13

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.569, 120.57(1), and 120.60(5),

Florida Statutes.

36. Where, as here, an agency proposes to take punitive

action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes (1997), and Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

That standard requires that "the evidence must be credible; the

facts to which the witnesses testify must be distinctly

remembered; the testimony 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 truth of the allegations sought to be

established." Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983).

37. Pertinent to this case, Section 460.413, Florida

Statutes (1993), 14 provides that the following acts shall

constitute grounds for which the Board of Chiropractic (Board)

may take disciplinary action against a licensee:

(m) Failing to keep written chiropractic

records justifying the 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.

* * *

(r) Gross or repeated malpractice or the

failure to practice chiropractic at a level

of care, skill, and treatment which is

recognized 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 15

interpreting this provision. . . .

* * *

(v) Violating any provision of this

chapter, any rule of the board or department,

or a lawful order of the board or department

previously entered in a disciplinary hearing

or failing to comply with a lawfully issued

subpoena of the department.

38. For the perceived violation of subsection

460.413(1)(v), the agency contends Respondent failed to comply

with the minimum recordkeeping standards established by Rule 59N-

17.0065, Florida Administrative Code (now codified at 64B2-

17.0065, Florida Administrative Code); however, the minimum

standards now imposed are substantially greater than those that

were imposed by rule when the events which gave rise to the

charges in this case occurred. At that time the rule, then

codified at 61F2-17.005, Florida Administrative Code, established

the following minimal recordkeeping standards:

(1) These standards apply to all licensed

chiropractic physicians and certified

chiropractic assistants. These standards

also apply to those examinations advertised

at a reduced fee, or free (no charge)

services.

(2) Adequate patient records shall be

legibly maintained. 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.

(3) All patient records shall include

patient history, symptomatology, examination,

diagnosis, prognosis, and treatment.

(4) 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

this chapter.

These are the standards by which Respondent's recordkeeping

should be judged; however, these requirements are little more

than a restatement of the requirements of Subsection

460.413(1)(m), Florida Statutes. Consequently, any violation of

subsections 460.413(1)(m) and (v) should be considered one

violation and not a separate violation for penalty purposes.

39. Applying the foregoing provisions of law to the facts,

as found, compels the conclusion that, with regard to his

treatment of B. D., Respondent violated the provisions of

subsections 460.413(1)(m), (r), and (v), as alleged in Counts I,

II, and III, respectively, of the Administrative Complaint, and

that, with regard to his treatment of K. E., Respondent violated

the provisions of subsections 460.413(1)(m), (r), and (v), as

alleged in Counts IV, V, and VI, respectively, of the

Administrative Complaint. 16

40. Having reached the foregoing conclusions, it remains to

resolve the appropriate penalty that should be imposed.

Pertinent to this issue, Section 460.413(2), Florida Statutes

(1993), authorizes the Board to impose one or more of the

following penalties when it finds a licensee guilty of any of the

foregoing offenses:

(a) Refusal to certify to the department

an application for licensure.

(b) Revocation or suspension of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine

not to exceed $1,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the chiropractic

physician on probation for a period of time

and subject to such conditions as the board

may specify, including requiring the

chiropractic physician to submit to

treatment, to attend continuing education

courses, to submit to reexamination, or to

work under the supervision of another

chiropractic physician.

Also pertinent to this case, Rule 64B2-16.003(1), Florida

Administrative Code, provides the guidelines for the disposition

of disciplinary cases. The guidelines for violations of

subsections 460.413(1)(m), (r), and (v) are as follows:

(u) 460.413(1)(m): from a minimum of one

(1) year of probation, up to a maximum of

suspension of license for three (3) months,

followed by six (6) months of probation;

* * *

(z) 460.413(1)(r): gross or repeated --

from a minimum of suspension of license for

three (3) months, followed by six (6) months

of probation, up to a maximum of revocation

or denial of license; other -- from a minimum

of an administrative fine of $1,000 and six

(6) months of probation, up to a maximum of

suspension of license for one (1) year,

followed by two (2) years of probation;

* * *

(dd) 460.413(1)(v): from a minimum of

reprimand, up to a maximum of revocation or

denial of license. . . .

Finally, Rule 64B2-16.003(2), Florida Administrative Code, sets

forth the aggravating and mitigating circumstances which may be

considered in determining the appropriate penalty.

41. Applying the foregoing standards to the facts of this

case, with regard to B. D., compels the conclusion that an

appropriate penalty for Respondent's violation of subsection

460.413(1)(r), given that Respondent's care was found to have

failed to meet the prevailing standard of care, as opposed to

gross or repeated malpractice, would be a suspension of licensure

for one (1) year, followed by two (2) years of probation. For

the violations of subsections 460.413(1)(m) and (v), as they

related to B. D., an appropriate penalty would be a one (1) year

term of probation, to be served concurrently with the term

imposed for the subsection 460.413(1)(r) violation.

42. With regard to K. E., an appropriate penalty for

Respondent's violation of subsection 460.413(1)(r), given that

Respondent's care was found to have failed to meet the prevailing

standard, as opposed to gross or repeated malpractice, would be

an administrative fine of $1,000 and six (6) months of probation,

to be served concurrently with the term imposed for the violation

regarding B. D. For the violations of subsections 460.413(m) and

(v), as they relate to K. E., an appropriate penalty would be a

one (1) year term of probation to be served concurrently with the

term imposed for the violation relating to B. D.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered which finds the

Respondent committed the offenses alleged in Counts I through VI

of the Administrative Complaint, and which imposes, as a penalty

for such violations, a suspension of licensure for a term of

one (1) year, followed by a two (2) year term of probation

(subject to such terms as the Board may reasonably impose), and

an administrative fine of $1,000.

DONE AND ENTERED this 5th day of August, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of August, 1998.

ENDNOTES

1/ Petitioner withdrew its proposed Exhibit 14, and it is not of

record. Petitioner's Exhibit 15 was the deposition of Bruce I.

Browne, D.C., which, with the parties' agreement, was taken post-

hearing and, when filed, received in evidence as Petitioner's

Exhibit 15.

2/ The parties were accorded ten days after the filing of the

transcript or the deposition of Dr. Browne (as discussed in

Endnote 1), which ever was later, to file proposed recommended

orders. Dr. Browne's deposition was filed July 7, 1998, and, it

being the later document filed, the ten day period began to run on

that date.

3/ The status of "interns" is discussed infra .

4/ See Chapter 462, Florida Statutes.

5/ At hearing, Respondent averred that K. E. was his maid, not

his patient, and presumably, consistent with his view of her

status, that is why he never did an examination (that was adequate

for chiropractic treatment) and why he did not prepare or maintain

patient records. However, while she may not have been a patient

when she first joined the staff at Club Hygiene, her status

changed overtime when Respondent began to consult with her

regarding her ill health; offered dietary counsel to address her

ill health; and K. E. entrusted herself to his care and

supervision. Consequently, a patient-physician relationship did

ultimately exist between K. E. and Respondent.

6/ Blood testing was not ordered either before or during the

fast; however, there was no showing at hearing that it was

necessary.

7/ According to Petitioner, Respondent's care of K. E. failed to

meet the prevailing standard of care because he "fail[ed] to make

appropriate examinations and properly supervise and monitor her

fast." (Petitioner's Proposed Recommended Order, page 8). At

least with regard to the supervision provided for K. E.'s fast,

Respondent's treatment did not fall below the prevailing standard.

8/ B. D. had been on a "health diet" for 7 years. (Petitioner's

Exhibit 7, Emergency Department Nursing Record, Fishermens

Hospital). Adoption of such a diet coincided with B. D.'s

discovery that he was HIV positive.

9/ Respondent testified that he initially treated B. D. in or

around 1988, and approximately every 15 or 18 months thereafter.

On this occasion, however, Respondent denies that he treated B. D.

or, stated otherwise, that a patient-physician relationship

existed (and, therefore, he owed no duty of care to B. D.).

Rather, Respondent avers that B. D.'s visit was personal.

Given the proof, Respondent's averment that, apart from a patient-

physician relationship, a familiar or personal relationship

existed between him, B. D., and B. D.'s family, is accepted;

however, that does not detract from the conclusion that he treated

B. D. and that a patient-physician relationship existed during

this visit. Indeed, it is apparent that B. D. came to Club

Hygiene to fast under Respondent's supervision and that Respondent

accepted that trust and responsibility.

10/ Respondent testified, at hearing, that he was unaware that

B. D. was HIV positive or that he had developed AIDS. Considering

the proof, Respondent's testimony in this regard is rejected as

inherently improbable and unworthy of belief.

11/ The history B. D. provided, as reflected by this paragraph,

is suspect and, most likely, false in significant respects.

First, his occupation was noted as investment consultant (or

student) on admission, yet Respondent knew him to be a

professional musician. Second, he denies past hospitalizations or

poor health until recently, yet immediately before his arrival at

Club Hygiene, he was hospitalized for 2 to 3 weeks, and he was in

extremely poor health on arrival at Club Hygiene.

Also suspect, and most likely untrue, are certain statements B. D.

(and his mother) made on his emergency room admission. Then, as

reflected by the admission note, the EMTs stated that B. D. was

being prescribed vitamins (treated) by a chiropractor (Respondent)

but "they" (B. D. and his mother) denied this. B. D. also denied

any medical problems, and stated Respondent was just a friend and

was not treating him. Considering the record, B. D.'s statements

that Respondent was not treating him are rejected as not credible,

and most likely uttered to protect Respondent from criticism for

having cared for him at that time.

12/ Dr. Butler was also of the opinion that Respondent's care

failed to meet the prevailing standard in one other particular.

In this regard, Dr. Butler observed that, given the presence of

infection, the prevailing standard of care required a complete

blood count (CBC) to identify its cause or nature before approving

a fast. Here, B. D.'s patient history, which revealed what

Respondent perceived to be a fungal infection, was available to

both Dr. Browne and Dr. Butler, and they have reached opposing

conclusions regarding its significance to Respondent's care.

Given the record, or lack of further explanation, there is no

apparent reason to prefer Dr. Butler's opinion over Dr. Browne's.

Consequently, it must be concluded that Dr. Butler's opinion that

Respondent's care failed to meet the prevailing standard regarding

this aspect of B. D.'s care is not accepted as persuasive.

13/ Here, as early as November 28, 1993, if not before, B. D.'s

blood pressure was depressed, and his respiration labored. By

November 30, 1993, B. D.'s condition had deteriorated, with

congestion noted in all four quadrants, and extremely labored

breathing. B. D.'s respiratory distress progressively

deteriorated; however it was not until approximately 11:00 p.m.,

December 7, 1993, an elapsed time of almost 10 days from the onset

of depressed respiration, when Respondent insisted B. D. "trust

[his] judgment" and go to the hospital. (Transcript, page 175).

According to Respondent, in the interim "we just kind of watched

him. There was not a lot any of us could do at this point."

(Transcript, page 176). Such being the case, it was Respondent's

obligation to cease caring for B. D. and refer him to a facility

that could address his needs; however, there is no compelling

proof that Respondent advised B. D. that his condition was beyond

his knowledge or the methods available for him to treat, the

gravity of his circumstances, or the need to seek immediate care

by a medical physician. By failing to do so, Respondent's care

fell below the prevailing standard; however, whether earlier

referral would have affected the progress of B. D.'s disorder is,

based on this record, at best speculative.

14/ Section 460.413(1), Florida Statutes (1997), is substantially

the same as the 1993 version except with regard to subsection

460.413(1)(m) which in the 1997 version places additional

obligations on the chiropractic physician. That subsection

provides, as follows:

(m) Failing to keep legibly written

chiropractic 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 the

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.

Here, the law as it existed at the time of the events in question

has been applied.

15/ Section 766.102, Florida Statutes (1993), provides, in

pertinent part, as follows:

(1) In any action for recovery of damages

based on the death or personal injury of any

person in which it is alleged that such death

or injury resulted from the negligence of a

health care provider . . ., the claimant

shall have the burden of proving by the

greater weight of evidence that the alleged

actions of the health care provider

represented a breach of the prevailing

professional standard of care for that health

care provider. The prevailing professional

standard of care for a given health care

provider shall be that level of care, skill,

and treatment which, in light of all relevant

surrounding circumstances, is recognized as

acceptable and appropriate by reasonably

prudent similar health care providers.

16/ Respondent's contention that a physician-patient relationship

did not exist between him and B. D. or K. E. has not been

overlooked; however, as noted in the Findings of Fact Respondent's

contention has been rejected. In so concluding, it is observed

that the existence of a physician-patient relationship is a

question of fact to be resolved by observing whether the patient

entrusted himself to the care of the physician and whether the

physician accepted the case. In resolving that issue, it is

inconsequential that the services are performed gratuitously.

See , e.g. , 61 Am. Jur. 2d, Physicians, Surgeons, and other

Healers , Sections 36, 44, 158 and 159.

Once the patient has been accepted, the physician incurs the

consequent duty of due care and skill in treatment, to continue to

provide for health care once the relationship has been

established, and, when the patient's ailment is beyond his

knowledge or the methods of treatment available to him are not of

a character productive of reasonable success, to advise the

patient of the need for other treatment and to refer him to an

appropriate practitioner. See , e.g. , 61 Am. Jur. 2d, Physicians,

Surgeons, and other Healers , Sections 228 - 234.

In hand with the physician's duty of due care, the physician also

incurs the duty of good faith and fair dealing. That duty is

founded on the premise that the physician is learned, skilled, and

experienced in those matters about which the patient is

uninformed, but which are of the most vital interest to his well-

being; therefore, the patient must of necessity place great

reliance, faith, and confidence in the professional's word,

advice, and acts. Moreover, a person in ill health is more

subject to domination and undue influence. See , e.g. , 61 Am. Jur.

2d, Physicians, Surgeons, and other Healers , Sections 166 - 168.

COPIES FURNISHED:

Thomas Wright, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317

E. Renee Alsobrook, Esquire

Alsobrook & Dove, P.A.

Post Office Box 10426

Tallahassee, Florida 32302-2426

Eric G. Walker, Director

Board of Chiropractic

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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 agency that will

issue the Final Order in this case.