Levinson v. Connecticut Bd. of Chiropractic Examiners

• Decision Date: 20 June 1989
• Docket Number: No. 13354,13354
• Citation: 211 Conn. 508,560 A.2d 403
• Court: Connecticut Supreme Court
• Parties: David LEVINSON et al. v. CONNECTICUT BOARD OF CHIROPRACTIC EXAMINERS et al.

Page 403

560 A.2d 403

211 Conn. 508

David LEVINSON et al. v. CONNECTICUT BOARD OF CHIROPRACTIC EXAMINERS et al.

No. 13354.

Supreme Court of Connecticut.

Argued March 1, 1989.

Decided June 20, 1989.

Paul J. Lahey, Asst. Atty. Gen., with whom were Thomas J. Ring, Asst. Atty. Gen., and, on the brief, Clarine Nardi Riddle, Acting Atty. Gen., and Robert E. Walsh and Richard J. Lynch, Asst. Attys. Gen., for the appellant-appellee (named defendant).

Richard Fuchs, with whom, on the brief, was Joan C. Harrington, Bridgeport, for appellee-appellant (plaintiff Debra Weiss-Levinson).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

HULL, Associate Justice.

This case involves appeals taken by two chiropractors, David Levinson (Levinson) and Debra Weiss-Levinson (Weiss-Levinson), from disciplinary decisions of the defendant state board of chiropractic examiners (board). The board suspended the plaintiffs' chiropractic licenses and ordered each of them to pay fines. The plaintiffs appealed the board's decisions to the Superior Court. The trial court sustained the appeal as to Levinson and remanded the case to the board for action commensurate with its decision. The appeal as to Weiss-Levinson was dismissed by the trial court. The board then appealed to the Appellate Court the trial court's decision sustaining the appeal as to Levinson, and Weiss-Levinson cross appealed the trial court's dismissal of the appeal as to her. We transferred the case to this court pursuant to Practice Book § 4023. We find error on the board's appeal and remand the case to the trial court with direction to render judgment dismissing the appeal as to Levinson; we find no error on Weiss-Levinson's cross appeal.

The factual and procedural background of this case is not in dispute. On December 20 and 21, 1983, a notice of hearing and statement of charges were filed against the plaintiffs by the defendant department of health services. The hearing was held before the board on March 6, 1984. The notice of charges directed to Levinson stated in relevant part:

"FIRST COUNT: During February and March of 1982 David Levinson negligently or incompetently failed to properly diagnose Andrea Paldino which conduct is a violation of Connecticut General Statutes Section 20-29.... ¹

"THIRD COUNT: On or about the 5th of February 1982 David Levinson negligently or incompetently diagnosed and/or treated Andrea Paldino by failing to take proper x-rays which conduct is a violation of Connecticut General Statutes § 20-29."

The notice of charges directed to Weiss-Levinson stated: "FIRST COUNT: On or about the 5th of February 1982 Debra Weiss-Levinson practiced chiropractic upon Andrea Paldino during a time when Debra Weiss-Levinson was not licensed under Chapter 372 of the General Statutes of Connecticut which conduct is a violation of Connecticut General Statutes § 20-27, § 20-29 and § 20-33.

"SECOND COUNT: On or about the 8th of February 1982 Debra Weiss-Levinson practiced chiropractic upon Andrea Paldino during a time when Debra Weiss-Levinson was not licensed under Chapter 372 of the General Statutes of Connecticut which conduct is a violation of Connecticut General Statutes § 20-27, § 20-29 and § 20-33."

After a contested hearing the board issued a memorandum of decision, dated September 28, 1984. The board made the following factual findings:

"1. David Levinson, D.C., at all pertinent times was licensed to practice chiropractic by the State of Connecticut, Department of Health Services.

"2. Pursuant to § 4-182(c), Conn.Gen.Stat., the respondent was provided a full opportunity prior to the institution of agency action to show compliance with all the terms for the retention of his license.

"3. On February 5, 1982, Andrea Paldino of West Hartford received a telephone call from Debra Weiss-Levinson, who introduced herself as Dr. Weiss of the Farmington Chiropractic Center.

"4. Debra Weiss told Ms. Paldino that she had learned of her health problem, i.e. persistent cough and headache, from another patient, Joseph Mirabella.

"5. After a conversation in which she described the advantages of manipulation and adjustment of the spine, Debra Weiss urged Ms. Paldino to make an appointment for an examination at the Chiropractic Center.

"6. Ms. Paldino made an appointment for the same day, February 5, 1982. She filled out a confidential patient case history which listed neck pain, lower back pain and bronchitis as her major complaints.

"7. During the February 5, 1982 appointment, Debra Weiss discussed and explained chiropractic to Ms. Paldino and advised her in order to diagnose her case that she would have to take x-rays and conduct an examination.

"8. Debra Weiss proceeded to take several x-rays of Andrea Paldino. She also performed a kinesiological examination which included testing of reflexes and testing of muscle balance and strength.

"9. On February 8, 1982, Andrea Paldino returned to the Chiropractic Center for her second appointment.

"10. During the February 8 appointment, Debra Weiss interpreted Ms. Paldino's x-rays, pointing out that the chest x-ray contained small white dots around the top portion of her chest, indicating that there was lot of mucus in this area, and that the x-ray of the lower spine indicated that it was not formed correctly.

"11. During the aforementioned appointment, Debra Weiss also interpreted the results of Ms. Paldino's kinesiology examination, pointing out that one of her legs was shorter than the other and that she had weak areas all over her body. On a subsequent occasion, Debra Weiss interpreted a laboratory report on some blood work performed on Ms. Paldino.

"12. During the February 8 appointment, Debra Weiss explained that the treatment of Ms. Paldino's difficulties would include therapeutic massage of the chest and chiropractic adjustments in order to properly align the spine.

"13. At the time of the February 5 and 8, 1982, appointments, Debra Weiss was not licensed to practice chiropractic by the State of Connecticut. Such a license was issued to Debra Weiss on August 16, 1982.

"14. An advertisement in the 1982 Hartford Telephone Directory Yellow Pages indicated that at the time of Ms. Paldino's appointments at the Chiropractic Center, Debra Weiss held herself out as a doctor of chiropractic. Bills issued to Andrea Paldino by the Chiropractic Center also indicated that Debra Weiss held herself out as a doctor of chiropractic at the time of Ms. Paldino's appointments.

"15. During the February 8, 1982 appointment, Ms. Paldino was seen for the first time by Dr. David Levinson, who administered a chest massage for her. At this and subsequent appointments, Dr. Levinson performed certain chiropractic adjustments on Ms. Paldino's back.

"16. There is no indication that Debra Weiss or Dr. Levinson ever performed a pulmonary evaluation of Andrea Paldino.

"17. On or about March 28, 1982 Andrea Paldino stopped going to the Chiropractic Center for treatment. At that time her neck and back pain had improved, but her bronchitis and accompanying cough still continued.

"18. On July 25, 1982 Andrea Paldino was admitted to New Britain General Hospital where she was found to have a malignant mass and operated on."

With respect to Levinson, the board concluded in part:

"First Count

"21. [General Statutes] § 20-29 provides in pertinent part that: 'The board of chiropractic examiners may take any of the actions set forth in [General Statutes] § 19a-17 for any of the following reasons: ... illegal, incompetent or negligent conduct in the practice of chiropractic.' (Emphasis added.)

"22. Dr. David Levinson's failure to conduct a thorough examination of the pulmonary and respiratory systems of Ms. Paldino is significant. A patient complaining of bronchitis is entitled to have an examination to evaluate bronchitis, and failure to do so represents negligence on the part of the doctor. Reliance upon kinesiology, orthopedics, and x-ray evaluation of bone structures is insufficient to the evaluation of bronchitis.

"23. Dr. David Levinson acted illegally in allowing an unlicensed person to represent herself as a doctor of chiropractic, and to engage in conduct which falls within the practice of chiropractic. Moreover, by relying on the results of an examination conducted by an unlicensed person, he negligently failed to diagnose or treat Andrea Paldino properly....

"Third Count ²

"25. Because Andrea Paldino complained of bronchitis, it was negligent of Dr. David Levinson not to take thorough chest x-rays on 5 February 1982."

As to Weiss-Levinson, the board concluded in part:

"First and Second Counts ³

"27. Debra Weiss identified herself to Andrea Paldino as a doctor of chiropractic and represented herself as such. At no point did Debra Weiss indicate that she was other than a licensed professional. Such activities as diagnosis, x-ray interpretation and the performance of a kinesiological examination fall within the practice of chiropractic. The examination performed by Debra Weiss on Ms. Paldino was part of the diagnostic process that would typically be employed by a chiropractor. Chiropractic treatment includes the steps which lead to the actual adjustments.

"28. By the conduct in which she engaged, Debra Weiss-Levinson unequivocally violated two statutes. Section 20-27 of the Connecticut General Statutes dictates that: 'No person shall engage in the practice of chiropractic in this state until he has obtained a license.' In addition, [General Statutes] § 20-33, as revised by Public Act No. 84-526, provides in part that: 'Any person, except a physician or surgeon licensed under the provisions of chapter 370, who practices or attempts to practice chiropractic ... or who uses the title 'Chiropractor,' 'D.C.,' or any word or title to induce the belief that he is engaged in the practice of chiropractic, without complying with the provisions of this chapter, or any person who violates any provision of...