STATE OF FLORIDA BOARD OF CHIROPRACTIC MEDICINE

Transcription

1 DEPARTMENT OF HEALTH, STATE OF FLORIDA BOARD OF CHIROPRACTIC MEDICINE PETITION ER, v. NO SCOTT DAVID BARNHART, D.C., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Scott David Barnhart, D.C. In support, Petitioner alleges: 1. Petitioner is the state agency charged with regulating the practice of Chiropractic Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes. 2. At all times material to this complaint, Respondent was licensed to practice chiropractic medicine in the State of Florida, having been issued license number CH Respondent's address of record is 401 Balmoral Drive, Davenport, Florida DOH v. Scott David Bamhart, D.C. 1

2 4. At all times relevant to this complaint, Respondent owned Citrus Ridge Health Center (CRHC), a chiropractic clinic located in Davenport, Florida. 5. On or about October 19, 2016, Respondent's webpage for CRHC advertised that CRHC was an "Anti Aging Clinic."[sic] The advertisement lists that CRHC provides Stem Cell Treatment. 6. The advertisement stated that CRHC helps patients with "anti ageing"[sic] and that CRHC's patients "want to stay young." 7. Respondent's advertisement failed to list any disclaimers that CRHC does not actually stop aging. The advertisement failed to specify what procedures CRHC used for anti-aging techniques. 8. Respondent's advertisement created false or unjustified expectations of beneficial treatment or successful cures to aging. 9. The webpage advertised that "[CRHC] are the only local practice to combine both a medical and a natural approach to your health care." 10. The webpage advertised that Respondent and CRHC's physical therapist "specialize in physical medicine, muscular skeletal injuries, auto accidents, personal injuries, arthritis treatment, and wellness care." 11. Respondent through these written statements conveyed the DOH v. Scott David Bamhart, D.C. 2

3 impression that Respondent and/or CRHC, possessed qualifications, skills, or other attributes which are superior to other chiropractors. 12. The website advertised "NEW PATIENTS RECEIVE A FREE CONSULTATION!" 13. The website advertisement for free consultation did not state what Respondent's usual fee for a consultation would be. 14. The website advertisement for free consultation did not state the required disclaimer mandatory under Section , Florida Statutes, for advertisements with free services. 15. On or about November 9, 2016, Respondent circulated a flyer advertisement that failed to disclose a reference to the chiropractor by name. 16. The flyer advertisement failed to contain any representation which identifies the chiropractic practice being advertised by a name which does not include the terms "chiropractic," or some easily recognizable derivative thereof. 17. The flyer advertisement stated "There is now a doctor in your area who specializes in helping people like you lose weight and gain energy." 18. Respondent through the flyer advertisement conveyed the impression that Respondent and/or CRHC, possessed qualifications, skills, or DOH v. Scott David Barnhart, D.C. 3

4 other attributes which are superior to other chiropractors. 19. The flyer included an advertisement for body wraps that stated "Interested in losing 4" to 14" in one hour? With one of our body wraps, you can lose half a dress size in 60 minutes!" 20. The flyer advertisement stated "Come in and get a little pampered from our staff and lose inches at the same time! Our body wraps were developed by a UCLA Biochemist and are GREAT at slimming down arms, legs, tummies everything! Make sure to ask about how you can experience one of these inch loss and cellulite reduction body wraps for yourself!" 21. Respondent's advertisement created a false or unjustified expectation of beneficial treatment or successful weight loss through body wrapping. COUNT I 22.. Petitioner re-alleges paragraphs one (1) through twenty-one (21), as if fully set forth herein. 23. Section (1)(ff), Florida Statutes (2016), subjects a chiropractic physician to discipline for violating any provision of chapter 460, or chapter 456, or any rules adopted pursuant thereto. 24. Rule 64B (2) Florida Administrative Code, provides in DOH v. Scott David Barnhart, D.C. 4

5 pertinent part, the following: (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it: (c) Creates false or unjustified expectations of beneficial treatment or successful cures; or, (k) Contains any other representation, statement or claim which is misleading or deceptive. 25. Respondent's advertisements were false, misleading or unjustified in one or more of the following ways: CRHC body. wrapping. a. that CRHC was an anti-aging clinic; b. that CRHC helps patients with anti-aging; and/or, c. that a client could lose 4 to 14 inches within one hour through 26. Based on the foregoing, Respondent violated Section (1)(ff), Florida Statutes (2016), by violating Rule (2)(c) and (k), Florida Administrative Code (2016). COUNT II 27. Petitioner re-alleges paragraphs one (1) through twenty-one (21), as if fully set forth herein. DOH v. Scott David Bamhart, D.C. Case No

6 28. Section (1)(ff), Florida Statutes (2016), subjects a chiropractic physician to discipline for violating any provision of chapter 460, or chapter 456, or any rules adopted pursuant thereto. 29. Florida Administrative Code Rule 64B (2) provides in pertinent part, the following: (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it: (e) Convey the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, possess qualifications, skills, or other attributes which are superior to other chiropractors..." 30. Respondent's advertisement conveyed superior attributes to other chiropractors in one or more of the following ways: a. that CRHC was the only local practice to combine both a medical and a natural approach to health care; b. that Respondent and/or CRHC specialized in physical medicine, muscular skeletal injuries, auto accidents, personal injuries, arthritis treatment, and wellness care; and/or, c. that there was now a doctor in the CRHC area who specializes in helping people lose weight and gain energy. 31. Based on the foregoing, Respondent violated Section (1)(ff), Florida Statutes (2016), by violating Rule 64B (2)(e) DOH v. Scott David Bamhart, D.C. 6

7 Florida Administrative Code (2016). COUNT III 32. Petitioner re-alleges paragraphs one (1) through twenty-one (21), as if fully set forth herein. 33. Section (1)(cc), Florida Statutes (2016), subjects a chiropractic physician to discipline for advertising any reduced or discounted fees for services or treatments, or advertising any free services or treatments, without prominently stating in the advertisement the usual fee of the licensee for the service or treatment which is the subject of the discount, rebate, or free offering. 34. Respondent failed to state on his advertisement his usual fee for the service of a consultation. 35. Based on the foregoing, Respondent violated Section (1)(cc), Florida Statutes (2016), by advertising "Free Consultation" without prominently stating in the advertisement his usual fee for the service or treatment which was the subject of the discount, rebate, or free offering. COUNT IV 36. Petitioner re-alleges paragraphs one (1) through twenty-one (21), as if fully set forth herein. DOH v. Scott David Bamhart, D.C. 7

8 37. Section (1)(ff), Florida Statutes (2016), subjects a chiropractic physician to discipline for violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto. 38. Section , Florida Statutes (2016), provides as follows: "In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under... chapter the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT." 39. Respondent failed to include the above disclaimer in his advertisement for a free consultation. 40. Based on the foregoing, Respondent has violated Section (ff) Florida Statutes (2016), by violating a provision of chapter 456, specifically section , Florida Statutes, which is grounds for discipline by the Board of Chiropractic Medicine. COUNT V 41. Petitioner re-alleges paragraphs one (1) through twenty-one (21), as if fully set forth herein. DOH v. Scott David Bamhart, D.C. 8

9 42. Section (1)(e), Florida Statutes (2016), subjects a chiropractic physician to discipline for causing to be advertised, by any means whatsoever, any advertisement which does not contain an assertion or statement which would identify himself as a chiropractic physician or identify such chiropractic clinic or related institution in which he practices or in which he is owner, in whole or in part, as a chiropractic institution." 43. Respondent failed to identify himself as a chiropractic physician or identify CRHC as a chiropractic clinic in the flyer advertisement. 44. Based on the foregoing, Respondent violated Section (1)(e), Florida Statutes (2016), by failing to identify himself as a chiropractic physician and for failing to identify CRHC as a chiropractic clinic in the flyer advertisement. WHEREFORE, the Petitioner respectfully requests that the Board of Chiropractic Medicine enter an order imposing one or more of the following penalties: suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. DOH v. Scott David Barnhart, D.C. 9

10 SIGNED this day of "51, Celeste Philip, M.D., M.P.H. Surgeon. - - ii n d Secretary PCP Panel: Fox, PCP Date: i - Ro Ga.n Ass"stant General Counsel Fla. Bar No Florida Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL Telephone: (850) Facsimile: (850) Rose.Garrison@flhealth.gov FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Angel Sanders DATE JUN _ DOH v. Scott David I3amhart, D.C. 10

11 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section and , Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule (2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule (4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule (5), Florida Administrative Code. Mediation under Section , Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section (4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v. Scott David Bamhart, D.C. 11