Regulatory Action against Darcy Szigety, D.C.
Stephen Barrett, M.D.
In 2016, Washington's Chiropractic Quality Assurance Commission charged chiropractor Darcy Clayton Szigety with inappropriately advertising and using hyperbaric oxygen therapy. The case was settled with an informal stipulation under which Szigety, without admitting wrongdoing, agreed to (a) be placed on probation for at least three years, (b) pay the Commission $4000.48 for costs, (c) refund all fees charged for hyperbaric oxygen therapy, (d) complete 18 hours of continuing education in billing, documentation, and ethics, and (e) pass a jurisprudence examination. Szigety operates the Alderwood Back & Neck Pain Clinic in Lynnwood, Washington.
STATE OF WASHINGTON
DEPARTMENT OF HEALTH
CHIROPRACTIC QUALITY ASSURANCE COMMISSION
In the Matter of
DARCY CLAYTON SZIGETY
STATEMENT OF ALLEGATIONS
The executive director of the Chiropractic Quality Assurance Commission (Commission), on designation by the Commission, makes the allegations below, which are supported by evidence contained in case no. 2015-7497. The patients referred to in this Statement of Allegations and Summary of Evidence are identified in the attached Confidential Schedule.
1. ALLEGED FACTS
1.1 On February 14, 1996, the State of Washington issued Respondent a credential to practice as a chiropractor. Respondent's credential is currently active.
1.2 On or about July 28, 2015, an anonymous complaint was received which alleged that Respondent inappropriately advertised hyperbaric oxygen therapy and that an advertising testimonial found on the website was essentially false and inappropriate.
1.3 A review of Respondent's website demonstrated the following:
A. Respondent advertised that he offered hyperbaric oxygen therapy to "treat diseases or injuries using pressures higher than local atmospheric pressure inside a hyperbaric chamber."
B. That hyperbaric therapy is a" . . . safe way to provide pure oxygen to your body at a cellular level."
C. That the "hyperbaric chamber utilizes filtered, pressurized air to dissolve oxygen directly into your body's cerebral and spinal fluids, as well as the plasma with your cells. Once this happens, the body's tissue and vital organs are flooded with oxygen."
D. That Respondent marketed hyperbaric treatment to certain populations and ailments such as athletes, pre and .post operation patients, cancer patients, and patients with slow-healing wounds, patients with delayed radiation injuries, patients with soft tissue infections, thermal burns, patients with certain skin grafts and flaps, crush injuries, and diabetes-related wounds.
E. Respondent claimed that hyperbaric oxygen therapy is effective at healing wounds and, in turn, reducing risk for amputation, particularly if one had diabetes. Respondent also claimed that hyperbaric therapy was proven treatment for decompression sickness, arterial gas embolism, carbon monoxide poisoning, delayed radiation injury of the soft tissue or bones, gas gangrene, skin grafts and flaps that are not healing with standard treatment, soft tissue infections in which tissues are dying, anemia due to severe blood loss, crushing injuries where there is not enough oxygen for tissues, certain wounds that are not healing with standard treatment, thermal burns, abscess in the brain or head, osteomyelitis, and blockages of the retinal artery. Respondent also advertised that hyperbaric therapy helped people dealing with fatigue, stress, and insomnia.
F. Respondent's website did in fact advertise a patient testimonial which communicated that he was referred to Respondent from his interpreter for his L&I case, and that he was hurt on the job and was recommended chiropractic treatment to relieve his pain. The patient recommended anyone with an L&l work injury to see Respondent.
1.4 On or about October 26, 2015, Respondent's office manager informed a DOH investigator that a hyperbaric oxygen therapy session was one (1) hour in duration at the cost of one hundred dollars ($100.00), payable with cash or check. The office manager also confirmed that Respondent was the only doctor associated with the clinic. In addition, Respondent informed the investigator he had performed hyperbaric oxygen therapy on Patient A (patient in the testimonial) who suffered from severe fatigue and was referred to him from an undisclosed individual at L&I. However, Respondent was unable to produce a copy of the written testimony provided by Patient A, indicating that it had been destroyed.
1.5 In response to the investigator's request for a written explanation, Respondent provided a handwritten letter, dated December 17, 2015, that confirmed that Respondent offered hyperbaric oxygen treatment to his patient base.
1.6 On or about December 21, 2015, Respondent disclosed to the investigator that he was not aware of any rules or regulations that would prevent a chiropractor from performing hyperbaric oxygen therapy on patients.
1.7 On or about March 15, 2016, the DOH investigator obtained ten (10) random patient records for Patients B, C, D, E, F, G, H, I, J, and K. A review of these patient records demonstrated approximately three thousand dollars ($3,000.00) in fees (cash or check only) collected from rendering hyperbaric oxygen therapy to these patients.
2. SUMMARY OF EVIDENCE
2.1 Complaint, received July 29, 2015.
2.2 Respondent's statement, dated December 17, 2015.
2.3 Patients records and billings.
3. ALLEGED VIOLATIONS
3.1 The facts alleged in Section 1, if proven, would constitute unprofessional conduct in violation of RCW 18.130.180(3), (4), (7), (12), (13), and (16); RCW 18.25.005; WAC 246-808-505; WAC 246-808-520; WAC 246-?08-540; WAC 246-808-600; and WAC 246-808-625, which provide in part:
RCW 18.130.180 Unprofessional conduct. The following conduct, acts,· or conditions constitute unprofessional conduct for any license holder under the jurisdiction of this chapter:
(3) All advertising which is false, fraudulent, or misleading;
(4) Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed; diversion of controlled substances or legend drugs, the violation of any drug law, or prescribing controlled substances for oneself;
(7) Violation of any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice;
(12) Practice beyond the scope of practice as defined by law or rule;
(13) Misrepresentation or fraud in any aspect of the conduct of the business or profession;
(16) Promotion for personal gain of any unnecessary or inefficacious drug, device, treatment, procedure, or service;
RCW 18.25.005 "Chiropractic" defined.
(1) Chiropractic is the practice of health care that deals with the diagnosis or analysis and care or treatment of the vertebral subluxation complex and its effects, articular dysfunction, and musculoskeletal disorders, all for the restoration and maintenance of health and recognizing the recuperative powers of the body. ·
(2) Chiropractic treatment or care includes the use of procedures involving spinal adjustments and extremity manipulation. Chiropractic treatment also includes the use of heat, cold, water, exercise, massage, trigger point therapy, dietary advice and recommendation of nutritional supplementation, the normal regimen and rehabilitation of the patient, first aid, and counseling on hygiene, sanitation, and preventive measures. Chiropractic care also includes such physiological therapeutic procedures as traction and light, but does not include procedures involving the application of sound, diathermy, or electricity.
(3) As part of a chiropractic differential diagnosis, a chiropractor shall perform a physical examination, which may include diagnostic x-rays, to determine the appropriateness of chiropractic care or the need for referral to other health care providers. The chiropractic quality assurance commission shall provide by rule for the type and use of diagnostic and analytical devices and procedures consistent with this chapter.
(4) Chiropractic care shall not include the prescription or dispensing of any medicine or drug, the practice of obstetrics or surgery, the use of x-rays or any other form of radiation for therapeutic purposes, colonic irrigation, or any form of venipuncture.
(5) Nothing in this chapter prohibits or restricts any other practitioner of a "health profession" defined in RCW 18.120.020(4) from performing any functions or procedures the practitioner is licensed or permitted to perform, and the term "chiropractic" as defined in this chapter shall not prohibit a practitioner licensed under chapter 18. 71 RCW from performing medical procedures, except such procedures shall not include the adjustment by hand of any articulation of the spine.
WAC 246-808-505 Classification of chiropractic procedures and instrumentation.
(1) Procedures, instruments for treatment and/or diagnostic evaluation used by a doctor of chiropractic shall be classified by the commission as follows:
(a) "Approved": A procedure or instrument which is taught by a commission approved chiropractic college for patient clinical application and not for research or experimental purposes and is allowable by statute. All factors listed under subsection (4) of this section shall be considered before a procedure or instrument is placed in the approved classification.
(b) "Non-approved or experimental": Any procedure or instrument that does not meet with commission approval. A procedure or instrument in this classification shall pass further testing in the laboratory before it can be used on the public. These may be defined by previous declaratory rules or rules and regulations.
(c) "Research or investigational": A procedure or instrumentation that is not approved, but may have a positive benefit in the diagnosis or care of a patient's condition. No billing is allowed for procedures or instruments used under this classification.
(2) The commission shall maintain a classified list of chiropractic procedures and instrumentation. The list shall be made available upon request.
(3) A doctor who intends to use a new procedure or instrument in practice shall notify the commission to determine the classification of the procedure or instrument. If the procedure or instrument is not classified or if new information on a previously classified procedure or instrument is available the doctor shall:
(a) Provide the commission with supporting documentation concerning the use of such a procedure or instrumentation;
(b) Demonstrate sufficient additional training or study for the doctor and utilizing staff to properly use the procedure or instrumentation.
(4) The commission may use the following factors to determine the classification of the procedure or instrumentation, and shall notify the doctor of such classification:
(a) The new procedure or instrument is taught at an approved chiropractic college.
(b) There is a scientific basis for the new procedure or instrument.
(c) The procedure or instrument has a direct and positive relationship to chiropractic care.
(d) Comparison of potential risk to benefit to the patient.
(e) Any other factors the commission may wish to consider.
WAC 246-808-520 Identification.
(1) A chiropractor must clearly identify oneself as a chiropractor on his/her office signs.
(2) All identification of chiropractic practice shall be presented in a dignified manner and shall not be sensational or misleading.
WAC 246-808-540 Billing.
A doctor of chiropractic may bill for all provided services that are allowable under chapter 18.25 RCW and the rules adopted pursuant to the foregoing statute. The doctor shall utilize codes and/or descriptions of services that accurately describe the professional services rendered.
WAC 246-808-600 Prohibited publicity and advertising.
(1) A chiropractor shall not, on behalf of himself/herself, his/her partner, associate or any other chiropractor affiliated with his/her office or clinic, use or allow to be used, any form of public communications or advertising which is false, fraudulent, deceptive or misleading, including, but not limited to, such advertising which takes any of the following forms which are prohibited:
(a) Advertising which guarantees any result or cure;
(b) Advertising which makes claims of professional superiority;
(c) Advertising which fails to differentiate chiropractic care from all other methods of healing;
(d) Advertising for a service outside the practice of chiropractic as permitted in Washington.
(2) A chiropractor shall, upon request made by the commission, provide the commission with substantiation of the truth and accuracy of any and all claims made in their advertisements.
(3) Advertising is prohibited which offers gratuitous goods or services or discounts in connection with chiropractic services, unless the chiropractor provides a disclosure statement to be signed by the patient which explains:
(a) When there shall be a charge for goods and services;
(b) When the free services have been completed and that any additional services the patient requests are subject to charge; or
(c) When the discount has been exhausted and any additional services shall be subject to full charge: This subsection shall not be construed to relate to the negotiation of fee between chiropractors and patients or to prohibit the rendering of chiropractic services for which no fee is charged.
WAC 246-808-625 Public testimonial advertising.
(1) Public testimonial advertising includes the use of a statement testifying as to a chiropractor's qualifications, abilities and character, or to the value of chiropractic services.
(2) The use of testimonial advertising shall not be considered false or misleading if the following guidelines are met: ( a) Testimonials must relate to patient care provided within the immediately preceding five-year period.
(b) The testimonial shall be documented by a notarized statement of the patient, a copy of which is kept by both the chiropractor and the patient.
(c) The testimonial must be consistent with the history of the patient's care, including office records, examination reports and X rays.
(d) Testimonials shall not:
(i) Be exaggerated or misrepresented;
(ii) State that a technique or doctor is superior;
(iii) Claim specific cures;
(iv) Compare one chiropractor to another;
(v) Include a named diagnosis.
4. NOTICE TO RESPONDENT
4.1 The Commission has determined that this case may be appropriate for resolution through a Stipulation to Informal Disposition (Stipulation) pursuant to RCW 18.130.172(2). A proposed Stipulation is attached, which contains the disposition the Commission believes is necessary to address the conduct alleged in this Statement of Allegations and Summary of Evidence.
4.2 If Respondent agrees that the disposition imposed by the Stipulation is appropriate, Respondent should sign and date the Stipulation and return it within twenty-eight (28) days to the Department of Health Office of Legal Services at PO Box 47873, Olympia, WA 98504-7873.
4.3 If Respondent does not agree that the terms and conditions contained in the Stipulation are appropriate, Respondent should contact Alexander Lee, Department of Health Staff Attorney, PO Box 47873, Olympia, WA 98504-7873, (360) 236-4784 within twenty-eight (28) days.
4.4 If Respondent does not respond within twenty-eight (28) days, the Commission will assume Respondent has declined to resolve these allegations with an informal Stipulation and may proceed to formal disciplinary action against Respondent by filing a Statement of Charges pursuant to RCW 18.130.172(3).
4.5 If the parties cannot resolve the allegations with an informal Stipulation, the Commission may proceed with a formal Statement of Charges.
DATED: August 8, 2016
STATE OF WASHINGTON
DEPARTMENT OF HEALTH
CHIROPRACTIC QUALITY ASSURANCE COMMISSION
ALEXANDER H. LEE, WSBA #35824
DEPARTMENT OF HEALTH STAFF ATTORNEY
This article was posted on February 23, 2019.