Bennett v. Bureau of Prof'l & Occupational Affairs
| Decision Date | 08 May 2019 |
| Docket Number | No. 412 C.D. 2018,412 C.D. 2018 |
| Parties | Lawrence Charles BENNETT, D.C., Petitioner v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Board of Chiropractic, Respondent |
| Court | Pennsylvania Commonwealth Court |
James H. Thomas, Lancaster, for petitioner.
Kerry E. Maloney, Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE SIMPSON
Lawrence Charles Bennett, D.C., (Licensee) petitions for review from an order of the State Board of Chiropractic (Board) suspending his chiropractic license based on violations of the Chiropractic Practice Act (Act).1 The Board determined Licensee engaged in misleading advertising regarding treatment possibilities using a non-Board approved device, and that his reliance on the device to diagnose and treat patients constituted unprofessional conduct. Licensee contends the Board lacked authority to discipline his use of the device and representations regarding its efficacy because such activities related to nutritional counseling for which no chiropractic license is required. In addition, he challenged certain findings that relied on expert testimony as not supported by substantial evidence, asserting the expert lacked competence to testify about the device. Discerning no error below, we affirm.
Licensee obtained his chiropractic license in June 1992. He received no complaints prior to the one underlying this licensure action. His chiropractic practice, located in Ephrata, Pennsylvania, includes use of alternative techniques. One such technique is galvanic skin measurement using Asyra, a Class II device registered with the United States Food and Drug Administration (FDA) (Device).
Relevant here, in 2012, Licensee placed a four-page advertisement in The Plain Communities Business Exchange in the form of a newsletter entitled "Improve Your Health for Life!" Reproduced Record (R.R.) at 325a-28a (Newsletter). After noting Licensee was a licensed chiropractor proficient in various techniques, the majority of the Newsletter lauded the benefits of using the Device. It represented that holding the two brass handles of the Device for a few minutes, while connected to a computer, tested for "over 7,000 issues present in the body." R.R. at 325a.
The Newsletter described the Device as integral to a "complete exam," more thorough than Licensee's basic exam. R.R. at 328a. For an additional $170, the complete exam included "computerized testing to determine[:] your overall state of health[;] ... the number of toxins being stored in your body[;] [and] which organs these toxins are being stored in." Id. The Newsletter explained: Id. (emphasis added). Under "Patient Cases," it stated "[c]omputerized testing allows me to treat every patient as a unique individual, never guessing about the cause of their illness." Id. (emphasis added).
The Newsletter also included "patient" testimonials. R.R. at 327a-28a. One testimonial, from a woman diagnosed with breast cancer
, reported that use of the supplements indicated by the Device resulted in her cancer shrinking to half its initial size. The Newsletter represented Licensee had a "90% success rate" with the Device, noting it allowed him to treat patient illness generally. R.R. at 325a.
The content ended with "Dr. Bennett" in signature-style. R.R. at 328a. Then, below an ad for bus service between Ephrata and Ohio/Indiana, appeared a disclaimer. Printed in the same small font as most of the Newsletter, it read:
In late 2012, a Missouri dentist registered a complaint with the Board about the Newsletter, asserting it was misleading. In particular, he was concerned that the Mennonite community was susceptible to believing its claims. The Board undertook an investigation, which lasted more than two years.
The Bureau of Professional and Occupational Affairs then issued a seven-count order to show cause. It alleged the following violations: committing immoral or unprofessional conduct (Count 1); departing from the standards of acceptable chiropractic care (Count 2); advertising chiropractic practice in a manner intended or with a tendency to deceive the public (Count 3); making misleading, deceptive, untrue or fraudulent representations in the practice of chiropractic (Count 4); utilizing advertising that is false, fraudulent, deceptive or misleading (Count 5); holding himself out as a specialist without having a post-graduate certificate in that specialty (Count 6); and, making representations that chiropractic care would cure cancer
or an infectious or communicable disease (Count 7). See R.R. at 2a-10a.
Licensee filed an answer in which he admitted to publishing the Newsletter. However, he denied the Newsletter contents violated the Act.
The Board held a formal hearing on the charges in October 2015. During the hearing, the Board presented the expert testimony of J. Clifford Renyo, D.C. (Expert), accepted by Licensee as an expert in chiropractic care. Licensee objected to Expert testifying regarding the capabilities of the Device. Licensee testified on his own behalf, and for the Commonwealth as on cross-examination.
Licensee admitted that the Newsletter represented he would "use the [Device] to evaluate your spine, hips and joints." Hr'g Tr., 10/1/15, Notes of Testimony (N.T.) at 24; R.R. at 75a. He explained the Device uses "resonances" to determine imbalances in the body, which did not necessarily affect functionality. N.T. at 26-28; R.R. at 77a-79a. He acknowledged the Board did not approve the use of the Device in chiropractic care. Licensee confirmed that patients referenced in the Newsletter were his patients, and that he used results from testing with the Device to treat his patients. N.T. at 56; R.R. at 107a. The majority of his patients receive the complete exam, which includes testing with the Device. N.T. at 65; R.R. at 116a.
In his case in chief, Licensee emphasized the disclaimer contained in the Newsletter and the additional disclaimer that he provided as part of the intake interview with all new patients. The disclaimer in the patient intake form stated:
I understand that the procedures that [Licensee] uses in his practice are not a method for ‘diagnosing’ or ‘treating’ of any disease including conditions of cancer
, AIDS, infections, or other medical conditions, and that these are not being tested for or treated. Furthermore, no promises or guarantees are made regarding the results of [Licensee's] procedures.
R.R. at 376a. Before undergoing treatment, each new patient signs and dates the intake form containing the above disclaimer. Licensee also underscored that counsel reviewed the Newsletter to assess its content.
Expert testified regarding the standard of care in chiropractic and whether the Device met those standards, and his view on representations in the Newsletter. He explained he researched the FDA's approval of the Device and documents the FDA published regarding the Device on its website. He opined the Device was not consistent with the chiropractic standard of care. He found the Newsletter misleading in that it indicated the Device could identify viruses for effective treatment when chiropractors are not licensed to treat communicable diseases. R.R. at 179a. Expert was concerned that Licensee Bd. Op., 2/28/18, Finding of Fact (F.F.) No. 26 (quoting N.T. at 125-26). He opined that before relying on a Device for use in chiropractic practice, a doctor must make sure that it is effective, particularly when it is not approved by the Board or accredited chiropractic institutions.
Ultimately, in February 2018, the Board issued its final adjudication, concluding Licensee was subject to discipline under the Act as set forth in Counts 1, 3, 4, 5, and 7 of the order to show cause. The Board considered the violations related to misrepresentations in the Newsletter (Counts 3, 4, and 5) as one violation. Specifically, it concluded that use of the Device, which is not Board-approved, without training on the Device, constituted "unprofessional conduct" that failed to conform to chiropractic standards in violation of Section 506(a)(11) of the Act, 63 P.S. § 625.506(a)(11). As to the misleading advertising charges, the Board found the Newsletter indicated that the Device was meant to diagnose and treat a number of listed conditions that are outside the scope of chiropractic, like breast cancer
. As a result, the Board suspended Licensee's license for 36 months, with an active suspension of three (3) months, effective 30 days later (March 30, 2018), followed by 33 months of probation. The Board also imposed a civil penalty of $10,000.
Licensee timely petitioned for review of the Board's final adjudication and order. Licensee also sought a stay pending appeal, which was unopposed. Thus, this Court granted a stay of the suspension.
On appeal,2 Licensee argues the Board erred as a matter of law in regulating his nutritional counseling activities when that activity does not require a chiropractic license. He...
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...Affairs, State [Board] of Barber [Examiners] , 195 A.3d 315 (Pa. Cmwlth. 2018). Bennett v. Bureau of Professional and Occupational Affairs, State Board of Chiropractic , 214 A.3d 728, 734-35 (Pa. Cmwlth. 2019). However, "in reaching its decision, the Board must review the entire record and ......