Dan O. Harper, M.D. Charged with Negligence

Stephen Barrett, M.D.


Dan O. Harper, M.D., who operates Be Well Associates in Solana Beach, California, has been charged with negligence and failure to keep adequate records in connection with treating a patient. The accusation (shown below) expresses concerns about his use of homeopathic "energy water," craniosacral therapy, healing touch, ozone therapy, "cold" red laser treatment, frequency specific microcurrent (FSM), and kinesiology. In 2016, he signed a consent agreement under which he was placed on three years' probation during which he is required to take continuing education courses in ethics and record-keeping and either have a practice monitor or complete a clinical enhancement program.


KAMALA D. HARRIS
Attorney General of California
THOMAS S. LAZAR
Supervising Deputy Attorney
TESSA L. HEUNIS
Deputy Attorney General State Bar No. 241559
110 West "A" Street, Suite 1100
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2074
Facsimile: (619) 645-2061

Attorneys for Complainant

BEFORE THE
DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA

In the Matter of the Accusation Against:

DAN ORVILLE HARPER, M.D.,
509 South Cedros Avenue, Suite B
Solana Beach, CA 92075

Physician's and Surgeon's
Certificate No. C 51231,

Respondent.


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Case No. 11-2012-223668

ACCUSATION

 

FILED: March 19, 2015

Complainant alleges:

PARTIES

1. Kimberly Kirchmeyer (complainant) brings this Accusation solely in her official capacity as the Executive Director of the Medical Board of California, Department of Consumer Affairs (Board).

2. On or about July 1, 2003, the Board issued Physician's and Surgeon's Certificate No. C 51231 to Dan Orville Harper, M.D. (respondent). The Physician's and Surgeon's Certificate was in full force and effect at all times relevant to the charges and allegations brought herein and will expire on July 31, 2017, unless renewed.

JURISDICTION

3. This Accusation is brought before the Board under the authority of the following laws. All section references are to the Business and Professions Code (Code) unless otherwise indicated.

4. Section 2227 of the Code states:

"(a) A licensee whose matter has been heard by an administrative law judge of the Medical Quality Hearing Panel as designated in Section 11371 of the Government Code, or whose default has been entered, and who is found guilty, or who has entered into a stipulation for disciplinary action with the board, may, in accordance with the provisions of this chapter:

"(1) Have his or her license revoked upon order of the board.

"(2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board.

"(3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board.

"(4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses approved by the board. "

(5) Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative law judge may deem proper.

"(b) Any matter heard pursuant to subdivision (a), except for warning letters, medical review or advisory conferences, professional competency examinations, continuing education activities, and cost reimbursement associated therewith that are agreed to with the I board and successfully completed by the licensee, or other matters made confidential or privileged by existing law, is deemed public, and shall be made available to the public by the board pursuant to Section 803.1."

5. Section 2234 of the Code, states:

"The board shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following:

"(a) Violating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision of this chapter.

"(b) Gross negligence.

"(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts.

"(1) An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act.

"(2) When the standard of care requires a change in the diagnosis, act, or omission that constitutes the negligent act described in paragraph (l), including, but not limited to, reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs from the applicable standard of care, each departure constitutes a separate and distinct breach of the standard of care.

". . ."

Section 2266 of the Code states:

"The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct."

FIRST CAUSE FOR DISCIPLINE

(Gross Negligence)

7. Respondent is subject to disciplinary action under sections 2227 and 2234, as defined by section 2234, subdivision (b), of the Code, in that he committed gross negligence in his care and treatment of patients, as more particularly alleged hereinafter:

8. Respondent practices integrative and "functional" medicine at his practice, Be Well Associates, in Solana Beach, assisted by employees and/or independent contractors. Included in the therapies which he employs in the care and treatment of his patients are craniosacral therapy, healing touch, "cold" red laser treatment, homeopathy, frequency specific microcurrent (FSM), ozone therapy and kinesiology.

9. During an interview conducted during the investigation of this matter, respondent stated that, in the care and treatment of his patients, respondent sometimes creates a "blue bottle" of "energy water" or "energy medicine" which he then gives to patients with instructions for use and dosage. Respondent further claimed that this "energy medicine" is created and/or boosted when one bottle containing one or more homeopathic remedies (bottle 1) is placed on one side of a "remedy maker" machine, and a second bottle containing only distilled water and magnesia phosphorica (bottle 2)1 is placed on the other side of the machine and, he claimed, the "energies" of the contents of bottle 1are transferred and/or boosted by the machine to the liquid in bottle 2 without there being any actual physical transfer of liquid between the bottles.

1Formerly, untiI at least October, 2012, respondent used a solution of distilled water and approximately 20% alcohol in the second bottle, a practice he claims to have later stopped.

10. There is no evidence that any homeopathic remedies can be exactly replicated or transferred by any machine in the manner claimed by respondent. There is similarly no evidence that, if such remedies were, in fact, replicated in the manner described, they would retain their "vibrational signature" for any length oftime, or what things (such as light exposure, caffeine, cell phones, etc.) may affect or neutralize any such remedy, if it existed at all.

11. During his interview, respondent listed craniosacral therapy and healing touch as two of the techniques which he uses in the care and treatment of his patients. Respondent has received no formal training in either craniosacral therapy or healing touch. During his interview, respondent stated that he was "trained" in craniosacral therapy by working alongside a young "Native American Indian" woman for two to three hours every week for approximately three years, while he was living in Montana. Respondent stated, further, that he did not know where this young woman herself had learned the technique, "other than that it was from a - one of the medicine men up in the Flathead Valley taught her."

12. Craniosacral therapy is a gentle, hands-on technique that releases restrictions in the soft tissues that surround the central nervous system.

13. During his interview, respondent stated that he uses craniosacral therapy to "pull out some of the negative energy or inflammation" of the affected area on his patients.

14. The incorrect use of craniosacral therapy can cause adverse effects for patients, which may include headache, pain and fatigue.

15. The use of ozone in a clinical therapeutic setting is considered experimental in California. During his interview, respondent stated that he has offered ozone therapy to his patients since 2002. As of approximately February 1, 2013, respondent has offered this therapy reportedly in connection with his role as co-investigator in a research program sponsored by the American Academy of Ozonotherapy, approved by the American College of Integrative Medicine and Dentistry Institutional Review Board, and aimed at evaluating various aspects of ozone therapy on patients and their illnesses.

16. The anatomical and biochemical characteristics of the lung make it extremely sensitive to oxidative damage by ozone. For this reason, a destructor unit, which instantly catalyzes the dismutation of ozone back to oxygen, should always be employed in the same room where the ozone is being produced.

17. At the Board interview, respondent stated that, while he owns a destructor unit, he never uses it, including while creating and/or administering ozone to his patients.

18. Respondent owns and uses "cold" red lasers at his practice. During his interview, respondent explained that he permits reportedly pre-approved patients to self-administer treatments with these laser machines in his waiting-room and/or other areas of his office. Respondent further stated that he does not maintain any documentation of these individual self-application sessions in the medical records of these patients.

19. Respondent has committed gross negligence in his care and treatment of various patients which includes, but is not limited to, the following:

(a) Respondent treats his patients with "energy medicine" created by him through the alleged transference of frequencies or "energies" from one bottle to another through his use of the "remedy maker" machine which he claims imbues the latter bottle with healing properties;

(b) Respondent offers to his patients as a treatment, and performs on them, craniosacral i therapy without having received adequate training in craniosacral therapy;

(c) Respondent has exposed his patients, and potentially his staff as well, to ozone via a respiratory route by failing to use the destructor unit while creating and/or administering ozone to his patients; and

(d) Respondent failed to maintain adequate and accurate records of the use and/or self-administration of "cold" lasers by his patients in his office.

SECOND CAUSE FOR DISCIPLINE

(Repeated Negligent Acts)

20. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by section 2234, subdivision (c), of the Code, in that he committed repeated negligent acts in his care and treatment of patient L.W. and other patients, as more particularly alleged hereinafter:

21. Paragraphs 7 through 18, above, are hereby incorporated by reference and realleged as if fully set forth herein.

22. During his interview, respondent stated that he employs and/or contracts with "certified" FSM technicians, whom respondent regards as more knowledgeable about FSM than he is. At his interview, respondent explained that he allows these technicians to administer FSM treatment to his patients and to make autonomous decisions regarding the precise level, duration and/or program of FSM treatment the patient(s) should receive, which respondent later retroactively ratifies.

23. Patient L.W. was an employee and/or independent contractor at respondent's practice from approximately May 2009 through October 2011. She also received medical treatment from respondent from approximately June 20, 2009, through approximately March 3, 2010.

24. Patient L.W. received FSM treatment at respondent's practice on several occasions. She was also permitted to take an FSM machine home and administer FSM treatments to herself at home. Patient L.W.'s medical record contains an incomplete record of such FSM treatments, including which FSM programs were recommended or used, the reasons therefor, and on which occasions. Patient L.W.'s medical record also contains the results of some laboratory tests but no chart notes regarding which tests and/or why they were ordered.

25. During the period that patient L.W. was working at respondent's practice, she was treated with ozone on at least one occasion, without apparent adequate indication for such experimental treatment and without the simultaneous use of a destructor unit. No record was made in patient L.W.' s medical chart of her ozone therapy treatment.

26. "Cold" red lasers such as the one owned and used by respondent at his practice can emit wavelength portions that can be associated with retinal damage when shined directly into the eye. Patients who are permitted by respondent to administer "cold" laser treatments to themselves in respondent's waiting room are directed to "avoid exposure of [their] eyes to the cold red laser for potential damage to the retinal tissues of [their] eyes." Patients are not warned to be careful to avoid shining the laser toward the eyes of other patients or staff members who may be in the immediate vicinity.

27. Respondent has committed repeated negligent acts in his care and treatment of patient L.W. and other patients, which include, but are not limited to, the following:

(a) Respondent treats his patients with "energy medicine" created by him through the all eged transference of frequencies or "energies" from one bottle to another through his use of the "remedy maker" machine which he claims imbues the latter bottle with healing properties;

(b) Respondent offers to hi s patients as a treatment, and performs on them, craniosacral therapy without having received adequate training in craniosacral therapy;

(c) Respondent has exposed his patients, and potentially his staff as well, to ozone via a respiratory route by failing to use the destructor unit while creating and/or administering ozone to his patients;

(d) Respondent used or permitted the use of experimental ozone therapy on a staff member without adequate indication and/or without maintaining an adequate and accurate record of such use and/or without the simultaneous use of a destructor unit;

(e) Respondent failed to maintain adequate and accurate records of the use and/or selfadministration of "cold" lasers by his patients in his office;

(f) Respondent allows patients to administer "cold" laser treatments to themselves in his waiting room without being given adequate prior warnings regarding potential danger to others through inadvertent use of the laser, thereby potentially exposing other patients and/or staff members in the immediate area to retinal damage through the longer wavelength beams;

(g) Respondent has permitted unlicensed persons to dictate which FSM treatment his patients should receive; and

(h) Respondent failed to maintain an adequate and accurate record of all treatments received by patient L.W. at respondent's office or by his direction.

THIRD CAUSE FOR DISCIPLINE

(Failure to Maintain Adequate and Accurate Records)

28. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by section 2266, of the Code, in that he failed to maintain adequate and accurate records relating to the provision of services to patient L.W. and other patients. The circumstances are set forth in paragraphs 7 through 27, above, which are hereby incorporated by reference and realleged as if fully set forth herein.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Board issue a decision:

1. Revoking or suspending Physician's and Surgeon's Certificate Number C 51231 issued to respondent Dan Orville Harper, M.D.;

2. Revoking, suspending or denying approval of respondent Dan Orville Harper, M.D.'s, authority to supervise Physician Assistants, pursuant to section 3527 of the Code;

3. Ordering respondent Dan Orville Harper, M.D., if placed on probation, to pay the Board the costs of probation monitoring; and

4. Taking such other and further action as deemed necessary and proper.

DATED: May 19, 2015

___________________________
KIMBERLY KIRCHMEYER
Executive Director
Medical Board of California
Department of Consumer Affairs
State of California
Complainant

This page was revised on March 27, 2017.

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