Lathrop v. Arizona Bd. of Chiropractic Examiners

• Decision Date: 14 March 1995
• Docket Number: CA-CV,No. 1,1
• Citation: Lathrop v. Arizona Bd. of Chiropractic Examiners, 182 Ariz. 172, 894 P.2d 715 (Ariz. App. 1995)
• Parties: Jeffrey L. LATHROP, D.C., Plaintiff-Appellant, v. ARIZONA BOARD OF CHIROPRACTIC EXAMINERS, Defendant-Appellee. 93-0310.
• Court: Arizona Court of Appeals

Page 715

894 P.2d 715

182 Ariz. 172

Jeffrey L. LATHROP, D.C., Plaintiff-Appellant, v.ARIZONA BOARD OF CHIROPRACTIC EXAMINERS, Defendant-Appellee.

No. 1 CA-CV 93-0310.

Court of Appeals of Arizona Division 1, Department B.

March 14, 1995.

Redesignated as Opinion and

Publication Ordered April 25, 1995.

[182 Ariz. 175] Gregory G. McGill, P.C. by Gregory G. McGill, Scottsdale, for plaintiff-appellant.

Grand Woods, Atty. Gen. by Montgomery Lee, Asst. Atty. Gen., Phoenix, for defendant-appellee.

OPINION

EHRLICH, Judge.

Jeffrey Lathrop appeals from the superior court's order affirming the revocation of his chiropractic license by the Arizona State Board of Chiropractic Examiners("Board").For the reasons which follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In 1988, Lathrop obtained a chiropractic license in Arizona.The following year, he was hired by American Clinics Corrective Chiropractic ("American Clinics") to operate one of their offices.In conjunction with its chiropractic services, American Clinics performed and advertised on television a weight-loss service referred to as Doctor's Choice Weight Loss Center ("Doctor's Choice").

On August 22, 1991, the Board issued a complaint against Lathrop in which it alleged violations of the Chiropractic Act.SeeAriz.Rev.Stat.Ann.("A.R.S.")§§ 32-900 through -930.Specifically, the Board charged Lathrop with five counts of unprofessional conduct of a character likely to deceive or defraud the public or tending to discredit the profession, A.R.S. § 32-924(A)(5), and five counts of conduct or practice contrary to recognized standards of ethics in chiropractic or which constitutes a danger to the health, welfare or safety of the patient or the public, or which impairs the ability of the licensee to safely and skillfully practice chiropractic.A.R.S. § 32-924(A)(15).¹All of the counts arose out of Lathrop's treatment of two individuals identified as N.C. and C.C.

Lathrop first saw N.C. on May 23, 1990, when she came to his office for the sole purpose of losing weight.After a brief initial consultation with Lathrop, N.C. returned for a cursory physical examination and cervical x-rays.During that second visit, Lathrop discussed with N.C. the possibility that she could have a thyroid condition which was preventing her from losing weight.Lathrop placed her on the Doctor's Choice liquid diet.On N.C.'s third visit, after purportedly comparing her films with those of a person with perfect cervical alignment, Lathrop concluded that, with proper alignment, her thyroid would begin functioning correctly and she would lose weight.On N.C.'s fourth visit, Lathrop took a series of lumbar x-rays and informed N.C. that he could identify her endometriosis on these films.²Lathrop indicated to N.C. that her treatment would be covered by her insurance.

On July 16, 1990, C.C. ³ went to Doctor's Choice with the apparent intent of enrolling in the weight-loss program.After briefly consulting with C.C., and without physical examination, Lathrop concluded that C.C.'s thyroid gland was the cause of his obesity and that he could help C.C. lose weight by manipulating his body and with liquid products.Lathrop also indicated to C.C. that his treatment would be covered by insurance and asked him to return to the office the next day for x-rays.

At the hearing on the complaint, the Board heard testimony from N.C., ⁴ C.C., Arthur J. Mollen, D.O., Lathrop, defense expert chiropractors Pierre Beaulieu and James Brewer, and the Board's expert chiropractor M. Brent Peugnet.

At the conclusion of the hearing, the Board adopted findings of fact and conclusions of law, and voted to revoke Lathrop's license.In its formal order of May 12, 1992, the Board included the following pertinent findings:

(5) Persons desiring to lose weight responded to weight reduction advertisements placed by American Clinics and Doctor's Choice and came to the aforementioned address seeking medical attention appropriate to safe, effective weight loss.These persons were x-rayed on the pretext of Lathrop's purported ability to diagnose metabolic abnormalities, specifically thyroid dysfunctions, through the use of routine chiropractic x-rays.

(6) In point of fact and unbeknownst to those persons seeking weight loss treatment at Doctor's Choice, the purpose of the x-rays taken by Lathrop was to establish a basis by which insurance companies could be induced to pay for routine chiropractic therapy which would have no direct bearing or effect upon weight loss.

(7) Persons desiring to participate in the Doctor's Choice weight loss program were accepted for treatment without the benefit of an adequate physical examination being given to determine the propriety of the Doctor's Choice program for the individual person seeking treatment.

(8) On or about May 23, 1991, patient N.C., chiropractically asymptomatic, went to Doctor's Choice with the intent of enrolling and participating in the Doctor's Choice weight loss program for the sole purpose of losing weight.After a brief, initial visit at which time Lathrop discussed the diet program, patient N.C. returned to Doctor's Choice for a series of x-rays.Subsequently, on patient N.C.'s third visit to Doctor's Choice, Lathrop, through the use of the aforementioned x-rays, diagnosed patient N.C. as having thyroid disease.Thyroid disease cannot be determined through the use of routine x-rays.[F]urther, x-rays should not be taken unless the benefits of the x-ray exposure outweigh the risks of x-ray exposure.

(9) In point of fact, the purpose of the x-rays taken of patient N.C. by Lathrop was to establish a basis by which insurance companies could be induced to pay for routine chiropractic therapy which would have no direct bearing or effect upon patient N.C. losing weight.

(10) Patient N.C. informed Lathrop that she was suffering from endometriosis.Lathrop stated that he was able to identify this condition on her routine x-rays and that he would be able to treat this condition chiropractically.Endometriosis cannot be determined through the use of routine x-rays.

(11) On the same day as Lathrop performed the x-rays on patient N.C., he also performed a cursory physical examination which was inadequate to determine the propriety of the Doctor's Choice weight loss program for patient N.C.

(12) On or about July 16, 1990, C.C., an undercover investigator for Channel 10 news, went to Doctor's Choice with the apparent intent of enrolling and participating in the Doctor's Choice weight loss program as a patient.At the initial visit, Lathrop performed a consultation which was inadequate to determine the propriety of the Doctor's Choice weight loss program for patient C.C.

(13) At that consultation, C.C. stated that "He(Lathrop) explained that he was a chiropractor and that people like me were suffering from a disease of, I believe, the thyroid gland, and that the reason that I was overweight was because of my thyroid and that he could help me lose weight by manipulation on my body and he could speed up the process as well with some shake product that they had."(from transcript page 31.)No scientific evidence exists to support the visual diagnosis of a thyroid disease.

The Board concluded that the conduct described in paragraphs 8 through 13 constituted violations of section 32-924(A)(5) and that the conduct detailed in paragraphs 8 through 12 constituted violations of section 32-924(A)(15).

After unsuccessfully moving for rehearing, Lathrop sought judicial review of the Board's decision in the superior court.SeeA.R.S. § 12-901 et seq.After written and oral arguments, the superior court found that the Board's decision was not arbitrary or capricious and was supported by substantial evidence.Accordingly, it entered formal judgment affirming the revocation of Lathrop's license.Lathrop timely appealed, raising the following issues:

1.Whether the record supports the Board's findings of fact and conclusions of law that Lathrop engaged in unprofessional conduct in violation of section 32-924(A)(5) and in conduct which constituted a danger to the health, welfare or safety of a patient in violation of section 32-924(A)(15);

2. whether the Board's revocation of Lathrop's license was an excessive penalty;

3. whether the Board was biased and prejudiced against Lathrop;

4. whether the 18-month lapse between Lathrop's alleged misconduct and the Board's adjudication was prejudicial;

5. whether the Board abused its discretion in allowing one of the state's experts to offer expert testimony;

6. whether Lathrop was prejudiced by the admission of the videotape of a local television station's newscast;

7. whether the Board erred in quashing the subpoena directing a reporter to testify; and

8. whether Lathrop was denied due process because the state did not compel expert testimony from one of his witnesses.

DISCUSSION

On appeal from the superior court's review of an administrative decision, we must determine whether the record supports that court's judgment.E.g., Samaritan Health Services v. Ariz. Health Care Cost Containment System Admin., 178 Ariz. 534, 537, 875 P.2d 193, 196(App.1994).⁵Thus, we must consider, as the superior court did, whether the agency's action was illegal, arbitrary, capricious or an abuse of discretion.Id.

1.Sufficiency of the Evidence

The Board determined that, with respect to N.C. and C.C., Lathrop's conduct violated A.R.S. sections 32-924(A)(5) and (15) which provide:

(A) The board may issue an order of censure and impose a civil penalty of not more than five hundred dollars or may prescribe probation, or may refuse to issue a license to an applicant, or may revoke or suspend a license, after a hearing, upon any of the following grounds whether occurring in this state or elsewhere:

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(5) Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession.

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