Disciplinary Action against James Warlick, D.C.

Stephen Barrett, M.D.


In 2009, James Warlick, D.C. signed a consent agreement under which he was placed on probation for a year and ordered to pay a fine of $2,000 and investigative costs of $574.32. The agreement (shown below) settled charges that he had (a) allowed an unlicensed person to examine and treat a patient, (b) failed to timely refund money from a prepaid plan to a patient for services not received, (c) advertised in a false and deceptive and misleading manner, (d) violated multiple Board subpoenas, and (e) failed to notify the Board of a change of address within the 30 days required by the Chiropractic Practice Act.

Warlick operates the Gonstead Family Chiropractic in Sun City, Arizona, where he uses nutrition response testing (NRT) NRT is a bogus muscle-testing system claimed to determine the "underlying causes of ill health" and treat them with dietary supplements. The Board's order did not mention Warlick's use of NRT.


BEFORE THE ARIZONA STATE BOARD OF CHIROPRACTIC EXAMINERS


IN THE MATTER OF:

JAMES L. WARLICK, D.C.,
Holder of License No. 5514
To Practice Chiropractic
In the State of Arizona,

Respondent.



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Case No. 2009-023,2009-024,2009-027,
2009-44, AND 2009-060

CONSENT AGREEMENT AND
ORDER FOR PROBATION, CIVIL
PENALTY AND RESTITUTION

CONSENT AGREEMENT

RECITALS

In the interest of a prompt and judicious settlement of this case, consistent with the public interest, statutory requirements and responsibilities of the Arizona State Board of Chiropractic Examiners ("Board"), and under A.R.S. §§ 32-924, et seq., and 41-1092.07(F)(5), James Warlick, D.C., holder of license number 5514 to practice chiropractic in the State of Arizona ("Respondent"), and the Board enter into the following Recitals, Findings of Fact, Conclusions of Law and Order ("Consent Agreement") as the final disposition of this matter.

1. Respondent has read and understands this Consent Agreement as set forth herein, and has been provided the opportunity to discuss this Consent Agreement with an attorney. Respondent voluntarily enters into this Consent Agreement for the purpose of avoiding the expense and uncertainty of an administrative hearing.

2. Respondent understands that he has a right to a public administrative hearing concerning each and every allegation set forth in the above captioned matter; at which administrative hearing he could present evidence and cross examine witnesses. By entering into this Consent Agreement, Respondent freely and voluntarily relinquishes all right to such an administrative hearing, as well as all rights of rehearing, review, reconsideration, appeal, judicial review or any other administrative and/or judicial action, concerning the matters contained within. Respondent affirmatively agrees that this Consent Agreement shall be irrevocable.

3. Respondent agrees that the Board may adopt this Consent Agreement or any part of this agreement, under A.R.S. § 32-924(K). Respondent understands that the Board may consider this Consent Agreement or any part of it in any future disciplinary action against him.

4. Respondent understands that this Consent Agreement does not constitute a dismissal or resolution of other matters currently pending before the Board, if any, and does not constitute any waiver, expressed or implied, of the Board's statutory authority or jurisdiction regarding any other pending or future investigation, action, or proceeding. Respondent also understands that acceptance of this Consent Agreement does not preclude any other agency, subdivision or officer of this state from instituting any other civil or criminal proceedings with respect to the conduct that is the subject of this Consent Agreement.

5. All admissions Respondent makes in this Consent Agreement are made solely for the final disposition of this matter, and any related administrative proceedings or civi1litigation involving the Board and Respondent. This Consent Agreement is not to be used for any other regulatory agency proceedings, or civil or criminal proceedings, whether in the State of Arizona or any other state or federal court, except related to the enforcement of the Consent Agreement itself.

6. By agreeing to allow the Board to impose the discipline ordered herein, Respondent acknowledges that the Board has evidence from which it could impose discipline under A.R.S. § 32-924(G).

7. Respondent acknowledges and agrees that, upon signing this Consent Agreement and returning this document to the Board's Executive Director, Respondent may not revoke his acceptance of the Consent Agreement or make any modifications to the document, regardless of whether the Executive Director issued the Consent Agreement. Any modification to this original document is ineffective and void unless mutually approved by the parties in writing.

8. Respondent understands that this Consent Agreement shall not become effective unless and until the Board adopts it and the Board Chairperson signs it.

9. Respondent understands and agrees that if the Board does not adopt this Consent Agreement, he will not assert as a defense that the Board's consideration of it constitutes bias, prejudice, prejudgment or other similar defenses.

10. Respondent understands that this Consent Agreement is a public record that may be publicly disseminated as a formal action of the Board, and shall be reported as required by law to the National Practitioner Data Bank and the Healthcare Integrity and Protection Data Bank.

11. Respondent understands that any violation of this Consent Agreement constitutes unprofessional conduct under A.R.S. § 32-924 (A)(16) ([v]iolating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter or any board order) and may result in disciplinary action under A.R.S. § 32-924.

DATED: July 1st, 2009 ______________________________
James Warlick, D.C.

FINDINGS OF FACT

By stipulation of the parties, this Consent Agreement is entered into for the final disposition of the matters described therein. Respondent admits to the following Findings of Fact:

I. The Board of Chiropractic Examiners is the duly constituted authority for licensing and regulating the practice of chiropractic in the State of Arizona.

2. During July and August of 2007, Respondent allowed an unlicensed person, Paul Woodcock, to examine and treat a patient.

3. In addition, Respondent failed to refund money from a pre-paid plan to a patient for services not received until after the patient, M.B., filed a complaint with the Board.

4. Further, Respondent advertised in a false and deceptive and misleading manner. Specifically, Respondent advertised "painless" procedures, misrepresented the effectiveness of his treatment when he claimed a 88.9% success rate that he cannot demonstrate as being supported, misrepresented that the treatment is space age technology, and advertised the first three visits to his clinic as being "free" without disclosing what services or items are included.

5. Respondent also violated multiple Board subpoenas. In the matter of Case No. 2009-027, Respondent was served with a subpoena on October 20, 2008 which required him to provide the full patient record for patient M.B. within ten days. Respondent failed to provide the full patient record. Respondent was issued a second subpoena on March 12, 2009 for production of the record within ten days. Respondent failed to comply with the subpoena until November 23,2009. Respondent also failed to bring the original patient record for patient M.B. to the March 26,2009 Board meeting as required in subpoena received on March 5, 2009. In the matter of Case No. 2009-060, Respondent was served with a subpoena on February 11, 2009 which required him to respond to the complaint and to provide a copy of his continuing education for 2008. Respondent did not respond. On March 26,2009, Respondent was hand-served with the subpoena and required to comply within ten days. Respondent did not respond until April 9,2009.

6. Finally, Respondent failed to notify the Board, in writing, of a change of address within the thirty days required by the Chiropractic Practice Act.

CONCLUSIONS OF LAW

1. Under A.R.S. § 32-900, et seq., the Board possesses jurisdiction over Respondent and this matter.

2. The conduct and circumstances described above in the above Findings of Fact, paragraph 5 constitutes unprofessional conduct pursuant to A.R.S. § 32-924(A)(5), "Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession," specifically violating A.A.C. R4-7-902(14), "Failing to timely comply with a board subpoena pursuant to A.R.S. § 32-929 that authorizes Board personnel to have access to any document, report, or record maintained by the chiropractic physician relating to the chiropractic physician's practice or professional activities."

3. The conduct and circumstances described in the above Findings of Fact, paragraph 2 constitutes unprofessional conduct pursuant to A.R.S. § 32-924(A)(5), "Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession," specifically violating A.A.C. R4-7-902(16), "Allowing or directing a person who is not a chiropractic assistant and who is not licensed to practice a health care profession to provide patient services, other than clerical duties."

4. The conduct and circumstances described in the above Findings of Fact, paragraph 4 constitutes unprofessional conduct pursuant to A.R.S. § 32- 924(A)(5),"Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession," specifically violating A.A.C. R4-7-902(17), "Intentionally misrepresenting the effectiveness of a treatment, diagnostic test, or device."

5. The conduct and circumstances described in the above Findings of Fact, paragraphs 2 and 6 constitute unprofessional conduct pursuant to A.R.S. § 32- 924(A)(5),"Unprofessional or dishonorable conduct of a character likely to deceive or .c;:

defraud the public or tending to discredit the profession," specifically violating A.A.C. R4-7-902 (36), "Violating any federal or state statute, rule, or regulation applicable to the practice of chiropractic."

6. The conduct and circumstances described in the above Findings of Fact, paragraph 4 constitutes unprofessional conduct under A.R.S. § 32-924(A)(13) "Advertising in a false, deceptive or misleading manner."

7. The conduct and circumstances described in the above Findings of Fact, paragraphs 2, 3 and 4 constitute unprofessional conduct under A.R.S. § 32-924(A)(15) "Any conduct or practice contrary to recognized standards in chiropractic or any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public or any conduct, practice or condition that impairs the ability of the licensee to safely and skillfully practice chiropractic".

8. The conduct and circumstances described in the above Findings of Fact, paragraph 5 and 6 constitute unprofessional conduct under A.R.S. § 32-924(A)(16) "Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter or any board order."

9. The conduct and circumstances described in the above Findings of Fact , paragraph 4 constitutes unprofessional conduct under A.R.S. § 32-924(A)(25) "Advertising chiropractic services, appliances, tests equipment, x-ray examinations or other procedures as free without also disclosing what services or items are included in the advertised service or item".

ORDER

Based upon the above Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED:

1. Chiropractic License No. 5514, issued to Respondent to practice chiropractic in the State of Arizona, shall be placed on PROBATION for one year for the unprofessional conduct described above.

2. The terms and conditions of Probation are as follows:

a. Within 30 days of the effective date of this Order, Respondent shall enter into an agreement with a neutral and objective Board-approved monitor and shall submit a copy of the agreement to Board staff. The Board-approved monitor shall provide monitoring services such as those offered by Affiliated Monitors headquartered in Boston Massachusetts. The Board-approved monitor shall not be owned by or employ any person who a) is related to Respondent by blood or marriage, b) has had a social or professional relationship with Respondent prior to the execution of this order, c) receives compensation of any nature from Respondent or d) otherwise has a conflict-of-interest as determined by the Board.

The Board-approved monitor's recommendations for monitoring of Respondent shall be unilaterally incorporated into this Order and Respondent shall promptly comply with any recommendations that the Board-approved monitor states in writing. Should the Board-approved monitor make recommendations of change to Respondent's practice activities, the change will take place within 10 days of notice of the recommendation. Respondent may protest the recommendations to the Board; however, such protest must be submitted to the Board, in writing, within ten days of notice of the recommendations.

The Board will determine if the recommendations should be implemented. If Respondent fails to implement the recommended changes or file protest with the Board within 10 days, Respondent may be found in violation of the Board order.

Respondent shall cause the Board-approved monitor to send monthly reports of Respondent's compliance with this Order and the Board-approved monitor's recommendations to the Board, which must be received by the Board by the 30th of each month.

If Respondent fails to contact and enter into an agreement with a Board-approved monitor within 30 days from the effective date of this Order, the Board may determine that Respondent has violated this Order and may take additional disciplinary action.

At a minimum, monitoring of Respondent shall include the following:

b. Within and up to three months from the effective date of this Order, Respondent shall take and complete six hours of C.E. in ethics that is preapproved by the Board-approved monitor and provide the Board-approved monitor with satisfactory proof of attendance within fifteen days after completing the C.E.. The six hours of C.E. in ethics are in addition to the mandatory hours of C.E. required of Respondent;

c. Within four (4) months from the effective date of this Order, Respondent shall take the National Board of Chiropractic Examiners Ethics and Boundaries Examination in Chiropractic and obtain a score of seventy-five percent (75%) or better to pass the examination. If Respondent fails the examination, he can retake the examination one more time; however, the retaking of the examination shall occur within eight (8) months from the effective date of this Order.

d. Within two (2) months from the effective date of this Order, Respondent shall take the Arizona Board of Chiropractic Examiners Jurisprudence Examination and obtain a score of seventy-five percent (75%) or better to pass the examination. If Respondent fails the examination, he can retake the examination one more time; however, the retaking of the examination shall occur within four (4) months from the effective date of this Order.

3. Within sixty days of the effective date of this Order, Respondent shall pay a CIVIL PENALTY of $2,000. Payment shall be made by cashier's check or money order to the Board.

4. Within one month from the effective date of this Order, Respondent shall pay Restitution to the Board for the cost of the investigations in the amount of $574.32.

5. Respondent may petition the Board for early termination of his probation provided that he has completed or complied with Paragraphs 2a, 2b, 2c, and 2d, 3 and 4. Upon petitioning, the Board shall have complete discretion to determine whether Respondent has complied with the required terms and conditions of the Order to grant termination of probation.

6. In the event that Respondent moves out of state or ceases to practice chiropractic in Arizona, he shall notify the Board of these events in writing, within 20 days, and the Board may stay the terms and conditions of his probation until Respondent returns to practice chiropractic in Arizona.

7. Respondent shall bear all costs required to insure his compliance with this Order.

8. Within two months from the effective date of this Order, Respondent shall meet all requirements to reinstate his license to active status, and shall keep his license current by submitting a complete license renewal application to the Board prior to January 1 for each year that he remains on probation.

9. Respondent shall obey all federal, state and local laws and all rules governing the practice of chiropractic in Arizona. The Board shall consider any violation of this paragraph as a separate violation of the Chiropractic Practice Act.

10. The Board retains jurisdiction over Respondent and may take additional remedial or disciplinary action against him if it determines that he has committed subsequent violations of this order or of the chiropractic practice act. Respondent shall appear in person before the Board to respond to questions or concerns regarding his compliance with this order when requested.

DATED AND EFFECTIVE this 20 day of August, 2009.

CHIROPRACTIC EXAMINERS

By_______________________________
P. Dianne Haydon, D.C., Chairperson
Arizona State Board of Chiropractic Examiners

Copy of the foregoing mailed by certified mail this 20 day of August, ,2009,
Certificate No. 7C081140000483427320, to:

James Warlick, D.C.
4913 West Hackamore Drive
Phoenix 85083
Respondent

COPY of the foregoing mailed this 20 day of August, ,2009, to:

M. Brent Peugent, Esq.
Broening, Oberg, Woods & Wilson, P.C.
1122 East Jefferson St.
P.O. Box 20527
Phoenix, Arizona 85036-0527
Attorney for Respondent

Mark Harris
Assistant Attorney General
1275 W. Washington, CIV/LES
Phoenix, Arizona 85007
Attorney for the State

______________________
Board Operations

This page was posted on June 16, 2011.

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