Certiorari to Minnesota Board of Chiropractic Examiners Court
Considered and decided by Leslie, Presiding Judge, Parker, Judge, and Crippen, Judge, with oral argument waived.
The opinion of the court was delivered by: Parker
1. The Minnesota Board of Chiropractic Examiners did not commit reversible error when it issued and served its order on William J. Proetz, D.C.
2. The Board did not abuse its discretion when it revoked Proetz's license, imposed costs, and ordered that he could not reapply for a license before August 13, 1991.
3. The Board did not err in imposing costs.
4. Minn. Stat. § 148.10, subd. 1 (1984), is not unconstitutionally vague or overbroad.
5. The period for appealing the 1982 order has passed.
6. Substantial evidence supports the Board's decision.
William J. Proetz appeals from an order of the Minnesota Board of Chiropractic Examiners revoking his license and imposing all costs incurred by the Board in the disciplinary proceeding. Proetz contends the Board's order was defective and improperly served; the sanctions were excessive; the costs were improperly imposed; Minn. Stat. § 148.10, subd. 1, is unconstitutionally vague and overbroad; the prior restrictions on Proetz' practice were contrary to the interests of his patients and the public; and the Board's findings are not supported by the evidence. We affirm.
Proetz was licensed by the Board in March 1973. In 1979 the Board suspended him for nine months and then placed him on probation for three years. The conditions of his probation were set forth in a June 29, 1979, order. By order dated April 30, 1981, the Board indefinitely suspended him for probation violations. He petitioned for reinstatement on a conditional basis, and a settlement agreement was reached. By order dated January 18, 1982, the Board reinstated Proetz's license on certain conditions. Paragraphs two and three of the 1982 order provide:
2. Any violation of this Order by Licensee shall constitute the violation of a lawful order of the Board within the meaning of Minn. Stat. § 148.10, subd. 1(9) (1980).
3. Unless determined in accordance with paragraph 5 below, the existence or nonexistence of any such violation shall be determined after a contested case hearing conducted pursuant to the Minnesota Administrative Procedure Act and applicable rules of the Office of Administrative Hearings, except that the licensee shall bear the burden of persuasion at any such hearing. This Order and Settlement Agreement upon which it is based .including all parts and attachments of each, shall be admissible into evidence without objection at any such hearing and shall be accorded conclusive weight regarding the standards by which the Licensee is required to practice. The sole issue to be determined at any such hearing shall be whether Licensee has violated any part of this Order; and Licensee shall assert no claim at any such hearing that this Order or any of its parts violates constitutional provisions, exceeds the Board's authority, was made by unlawful procedure, is affected by other error of law, is unsupported by substantial evidence, is arbitrary or capricious, is vague or unclear, or is or has become in any other way or for any other reason unenforceable and defective.
Under the order Proetz is (1) precluded from providing chiropractic service to any patient on more than 30 occasions in a calendar year, on more than ten occasions in a calendar month, or on more than one occasion in a day; (2) required to submit a written report every two months identifying his patients, their ages, and the service rendered; (3) required to refer patients to a chiropractic referral service if he believes a patient requires more care than he can provide because of the order; (4) precluded from providing unnecessary chiropractic services; (5) precluded from x-raying patients above the neck or below the pelvis without written permission; (6) precluded from taking x-rays where x-rays less than a year old are available; (7) precluded from providing or offering to provide free initial examinations or discounts which might be viewed as an inducement to receive additional services, except to persons who cannot otherwise pay; (8) precluded from claiming, representing, or intimating that a predetermined schedule of treatment is required to care for the patient or that failure to receive treatments will likely exacerbate a condition; and (9) precluded from representing or advertising that he "possesses a special, unique or superior qualification, training or expertise in the practice or in any area of the practice of chiropractic."
In 1983 Proetz provided chiropractic services to Raymond Jackson 59 times, to Carol Borvan 67 times, and to Jocallyn Jackson 61 times. He provided services to seven other patients on more than 30 occasions in 1983. In 1984 Proetz provided services to 19 patients on more than 30 occasions within the year. He provided service twice to three patients in the same day. He did not refer any patients to a referral service. From January 1983 through October 1984 he failed to provide the Board with any of the required information.
Proetz provided cards to Marjorie Collins entitling the bearer to free chiropractic services. He offered no evidence that she could not pay for the services. He sent a letter to Daniel Hom to return for periodic checkups, indicating he would also like to check his heart, lungs, blood pressure and kidneys at no additional charge. He provided no evidence that Hom was unable to pay for the services. Proetz encouraged Alice West to bring in members of her family for free chiropractic examinations and gave her three cards entitling the bearer to free chiropractic services. He provided no evidence that any of these people were unable to pay. Proetz offered to provide free initial chiropractic examinations to Douglas Nelson's relatives. He provided no evidence of inability to pay.
Proetz x-rayed Marjorie Collins, Daniel Hom, Debra Hom, and Alice West above the neck. He had x-rays taken of Linda Kirsch, even though she brought in x-rays which had been taken less than a month earlier. Proetz told Marjorie Collins that if she discontinued treatment with him, all he had done would be reversed.
Proetz set up a predetermined schedule of treatments for ten patients. He wrote and phoned one to encourage her to continue badly needed treatments. He advised another that her condition would become more serious if untreated. He told Nancy Sweningson that if she did not come in for treatment, she would become crippled or handicapped. He told another that if she left untreated, an early and untimely death would occur.
He gave two patients a "Patient-Doctor Agreement" providing that "certain amount of treatments are required in a set amount of time to get results we both desire." He showed one of these patients examples of untreated people who died at an early age and advised another that failure to follow the established schedule would adversely affect the healing process.
Proetz regularly uses calendars for predetermined appointments for predetermined periods. He routinely prescribes a series of treatments for every patient in which vertebral subluxation is found regardless of patient symptoms, history, or test results. The causes of vertebral subluxation are varied, and Proetz's practice follows the belief that by age two every person has vertebral subluxation requiring chiropractic care.
Proetz advised Debra Hom that multiple sclerosis is not a disease but a series of symptoms which he could treat and which would disappear with treatment.
Even though Patricia Welliver did not tell Proetz who her insurance carrier was, Proetz advised her that the carrier would pay 100 percent of her chiropractic care expenses.
Proetz practices alone at the Woodbury Center. He placed an ad in the Union Advocate stating, "The Woodbury Center combines the most modern equipment and techniques with highly trained professionals specializing in nerve and spine rehabilitation." He placed another ad in a newsletter which stated in part, "We can treat it better than anyone else!"
In June 1983 Proetz took Daniel Hom's blood pressure by loosely wrapping a blood pressure cuff around Hom's arm and placing a stethoscope on Hom's ulner artery midway between the elbow and wrist. The procedure established by the American Red Cross, the American Heart Association, the Minnesota Department of Health, and the University of Minnesota requires that the cuff be firmly wrapped around the patient's arm and that the stethoscope be placed on the brachial artery at the anecubital fossa or the inside of the elbow.
Proetz advised Debra Hom that her ten-year-old daughter would not lose weight eating "barely nothing" unless she received chiropractic treatment for her subluxations.
In June 1983 Proetz told Cheryl Fearing that she had two fused vertebrae and that one was close to fusing. Subsequent x-rays revealed no fused vertebrae. In October 1983 Proetz told Carole Wald that she had three fused vertebrae. Proetz's October 1983 x-ray ...