Gala v. Bd. of Chiropractic Exam'rs
| Decision Date | 04 August 2021 |
| Docket Number | A169311 |
| Parties | Thaddeus R. GALA, DC, Petitioner, v. BOARD OF CHIROPRACTIC EXAMINERS, Respondent. |
| Court | Oregon Court of Appeals |
James R. Dole argued the cause for petitioner. Also on the briefs was Watkinson Laird Rubenstein, P.C.
Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
Petitioner, a chiropractic physician, seeks judicial review of a final order of the Oregon Chiropractic Board of Examiners (the board). The final order imposed a disciplinary sanction on petitioner for unprofessional or dishonorable conduct and gross negligence in providing care to three patients—Patients 1, 2, and 3—through his "Healthy Living Plan" wellness program (HLP).
We write to address petitioner's first through fourth assignments of error, in which petitioner challenges the board's determinations that (1) petitioner's HLP is subject to the chiropractic standard of care; (2) petitioner engaged in unprofessional or dishonorable conduct; (3) petitioner engaged in gross negligence; and (4) petitioner could be disciplined for conduct relating to Patient 3, who did not consider herself petitioner's patient. We reject petitioner's remaining assignment of error without discussion,1 and for the reasons that follow, we affirm.
We review the board's order for errors of law and substantial evidence. ORS 684.105(2) ; ORS 183.482(8)(a), (c) ; Bruntz-Ferguson v. Liberty Mutual Ins. , 310 Or. App. 618, 619, 485 P.3d 903 (2021). Substantial evidence "exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c). In addition to reviewing for substantial evidence, "we also review the board's order for substantial reason." Bruntz-Ferguson , 310 Or. App. at 619, 485 P.3d 903. Substantial reason exists when "the board provided a rational explanation of how its factual findings lead to the legal conclusions on which the order is based." Id. In conducting our review, "the court shall not substitute its judgment for that of the agency as to any issue of fact." ORS 183.482(7).2
We begin by briefly summarizing the facts giving rise to this case, which we later supplement with additional facts in our discussion of each assigned error.
Petitioner is a licensed chiropractic physician. He runs a traditional chiropractic business and a second business called "My Diabetic Solution." According to petitioner's website, "My Diabetic Solution was created with the sole purpose and goal of helping 5 million people achieve their individual health goals *** [and to] help people with all types of diabetes and chronic ailments reverse their disease in 1-8 months." Through My Diabetic Solution, petitioner offers four free seminars, each focused on a specific medical condition: diabetes, fibromyalgia, sleep apnea, and neuropathy. The seminars are open to the public and advertised in print and online. Those advertisements always note petitioner's status as a chiropractic physician.
At the seminars, attendees may register for an individual consultation with petitioner. In so doing, an attendee completes a "Health Application and Case History" form, in which the attendee identifies, among other things, current and past health problems and medications. During the consultation, petitioner explains the HLP wellness program and determines whether the attendee is suitable to participate in the HLP, which focuses on introducing an anti-inflammatory diet, lifestyle changes, dietary supplements, and exercise. Petitioner offers two-, four-, and six-month HLP plans, charging flat fees of $2,495, $5,995, and $6,995, respectively.
Once accepted into the HLP, participants can communicate directly with petitioner, but they do not receive one-on-one care from petitioner; instead, they receive one-on-one services through scheduled phone calls with HLP "health coaches." Coaching calls usually occur once a week and focus on the HLP participants’ goals, progress, and challenges. Health coaches provide information and advice to the participants about how to implement the HLP, including advice on meal preparation, unhealthy eating habits, and dietary supplements.
Before coaching HLP participants, new health coaches are required to complete a seven-week training course developed by petitioner, but those health coaches are not licensed or certified by any Oregon agencies. Health coaches are overseen by the My Diabetic Solutions wellness director, who is in turn supervised by petitioner. Petitioner meets with the health coaches once a month, and he is available to answer questions from the health coaches or their HLP participants
In 2015 and 2016, the board received complaints regarding three HLP participants—i.e. , Patients 1, 2, and 3—and their interactions with petitioner and his HLP.
Patient 1 was 79 years old, had dementia, and enrolled in the HLP after attending petitioner's fibromyalgia seminar. She indicated in her Health Application that her main problems included fibromyalgia and neuropathy. She discontinued her participation in the HLP after about a month on the advice of her primary care provider and her daughter and received a partial refund. The complaint regarding Patient 1 was submitted to the board by her daughter.
Patient 2 was 82 years old, had dementia, and enrolled in the HLP after attending petitioner's neuropathy seminar. She indicated in her Health Application that she had numerous medical conditions, including conditions of the heart, lungs, spine, and nervous system. She stopped participating in the HLP after several weeks and received a full refund. The complaint regarding Patient 2 was submitted to the board by a physician's assistant in the office of her primary care provider.
Patient 3 was 69 years old and enrolled in the HLP after attending petitioner's fibromyalgia seminar. During her 30-minute consultation with petitioner, she became "very nervous and scared" and enrolled in the HLP because "she felt pressured to do so." Shortly after leaving the consultation, she informed one of petitioner's assistants that she did not want to participate in the HLP, and she eventually received a full refund. The complaint regarding Patient 3 was submitted to the board by Patient 3 herself.
The complaints relating to Patients 1, 2, and 3 ultimately led to the board issuing the final order that we are now asked to review. In that order, the board determined, among other things, that (1) petitioner's HLP was subject to the chiropractic standard of care; (2) petitioner had engaged in unprofessional or dishonorable conduct; (3) petitioner had engaged in gross negligence; and (4) petitioner had a doctor-patient relationship with Patients 1, 2, and 3. On review, petitioner challenges each of those determinations, and we address each, in turn.
In his first assignment of error, petitioner contends that "[t]he final order is contrary to law and is not based on substantial evidence, because [petitioner's] program of wellness care is not ‘chiropractic’ and is therefore not subject to the standard of care for traditional chiropractic care." We disagree.
The board determined that the HLP was "chiropractic" and subject to the chiropractic standard of care. That determination was based largely on the expert testimony of four chiropractors who testified at petitioner's hearing:
(Emphases added.) Additionally, the board noted that petitioner "agreed that, for a patient seeking problem-based care, the chiropractor would need to follow all the requirements of traditional chiropractic care." In light of the experts’ testimony, the board concluded that "the standard is clear—if the chiropractor is providing problem-based care to a patient, then [they] must follow the traditional chiropractic standards, regardless of the nature of the recommended treatment."
The board then reviewed "the totality of the circumstances" to "determine[ ] whether the HLP is offered as a treatment plan for a specific medical condition." In so doing, the board highlighted (1) petitioner's HLP advertisements "targeting patients who experience very specific medical conditions"—i.e. , "diabetes, fibromyalgia, and neuropathy"; (2) petitioner's website and HLP materials asserting that "medications are not the answer to treating certain medical conditions," and that the HLP "is the road map to reversing chronic disease"; and (3) petitioner's recommendation of "the HLP to the three patients as a treatment program for their specific medical conditions, fibromyalgia in the cases of Patients 1 and 3, and neuropathy in the case of Patient 2."
Based on those circumstances, the board—like the administrative law judge—found "the evidence overwhelming that [petitioner] provides problem-based care to the HLP participants," and it reasoned that "[b]ecause [petitioner] proposed the HLP to Patients 1, 2, and 3 as a treatment for their specific medical conditions, he was required to fulfill all standards of chiropractic care during his interactions with each of the three patients."
We conclude that the board's determination that petitioner must meet the chiropractic standard of care in providing the HLP to the participants is not legally erroneous and is supported by substantial evidence.
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