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Madsen’s license suspension based on record keeping, not criminal charges

Details found in the transcript regarding Erik Madsen’s December 2019 appearance before the Board of Chiropractic shows that their concern was not necessarily the sexual battery allegations against him, but more about his lack of record keeping and reporting.

Madsen was first arrested in November 2019 after charges of sexual battery were pressed against him by a former patient. Since the first victim came forward, 12 additional victims have since come forward with similar stories. Madsen was indicted to the Superior Court in Macon County in February and now faces 4 felony counts of Second Degree Forcible Sex Offence and 13 misdemeanor charges of sexual battery and 13 charges of assault on a female.

Initially, the North Carolina Board of Chiropractic Examiners suspended his license to practice, however Madsen’s license was reinstated in April, allowing him to continue practicing under a probationary pending the outcome of the criminal case.

According to the final agency decision in the matter of Erik Madsen, two complaints were filed against him in November 2019. In response to the complaints, Madsen’s attorney, Dale Curriden with the Van Winkle Law Firm in Asheville, provided patient records for both complainants which were sent to expert witness Dr. Anthony Hamm for review.

The findings of fact state that the complaints both alleged Madsen had inappropriately touched them in their genital areas with another alleging he grouped her breasts. Both victims were interviewed during the board’s investigation process and one even travelled to Raleigh to address the board in person in December.

The finding of facts state that while Madsen was treating the victim with a precussor (Vibracussor) he inappropriately exposed her genital area without draping her. He also failed to fully explain the treatment to the victims before doing it, and did not get consent to perform the treatment. The findings of fact also state that the second victim was not draped during treatment and no other staff members were present during the treatment.

After one victim complained to Madsen that the treatment was “not right” he apologized and then did not charge the victim for the visit – her complaint was filed shortly after the encounter.

The Board’s findings of fact specifically note “Licensee’s medical records for both patients do not describe the treatment provided to either patient; neither do the records describe a treatment plan for either patient. There is minimal documentation of a physical examination. There is no documentation of a clinical correlation of examining findings with the treatment suggested or provided. There is no documentation of written or verbal consent to the treatments performed.”

Based on that finding, Dr. Hamm was accepted as an expert witness for the sole purpose of evaluating Madsen’s  compliance – or lack thereof, as the case may be – with the Board’s statutes and regulations for patient record-keeping. Therefore, the board’s license suspension of Madsen was based on his lack of records, not the accusations or even pending sexual assault charges against him, which include 4 felonies and 26 misdemeanors. The board acknowledged the pending criminal charges against Madsen during the December hearing.

Both victims testified at the hearing, one in person and one via videoconference. Three individuals testified in person on behalf of Madsen, and Madsen himself testified. In addition to the individuals who testified on behalf of Madsen, Madsen provided 10 character reference letters.

The suspension of his license was specifically suspended based violation of G.S. 90-154.3.  “Not rendering acceptable care in the practice of the profession” The Findings of Fact specifically noted the following:

Licensee inappropriately required patient’s genital areas to be exposed without draping, and used a Vibracussor in such a way that made the patients feel uncomfortable

Licensee used poor judgement by treating patient breast area and genital area, without the patient being draped, and without another staff member present in the treatment room

Licensee’s patient records were incomplete, deficient and below the standards of care in chiropractic practice.

Based on the above reasoning, Madsen had to complete a 6 hour training in record keeping and take and pass the Ethics and Boundaries Essay Examination. Once completed, Madsen appeared back before the Board of Chiropractic in April, at which time he was granted a provisional license to continue practicing under a probationary period of 12 months.

Chiropractors in North Carolina are governed under Chapter 90 Article 8.

The General Statute regulating the practicing in the state specifically identifies grounds for professional discipline as:

(a)       The Board of Chiropractic Examiners may impose any of the following sanctions, singly or in combination, when it finds that a practitioner or applicant is guilty of any offense described in subsection (b):

(1)       Permanently revoke a license to practice chiropractic.

(2)       Suspend a license to practice chiropractic.

(3)       Refuse to grant a license.

(4)       Censure a practitioner.

(5)       Issue a letter of reprimand.

(6)       Place a practitioner on probationary status and require him to report regularly to the Board upon the matters which are the basis of probation.

Any one of the following is grounds for disciplinary action by the Board under subsection (a):

(1)       Advertising services in a false or misleading manner.

(2)       Conviction of a felony or of a crime involving moral turpitude.

(3)       Addiction to or severe dependency upon alcohol or any other drug that impairs the ability to practice safely.

(4)       Unethical conduct as defined in G.S. 90-154.2.

(5)       Negligence, incompetence, or malpractice in the practice of chiropractic.

(6)       Repealed by Session Laws 1995, c. 188, s. 1.

(7)       Not rendering acceptable care in the practice of the profession as defined in G.S. 90-154.3.

(8)       Lewd or immoral conduct toward a patient.

(9)       Committing or attempting to commit fraud, deception, or misrepresentation.

(10)     Offering to waive a patient’s obligation to pay any deductible or copayment required by the patient’s insurer.

(11)     Failing to honor promptly a patient’s request for a copy of any claim form submitted to the patient’s insurer.

(12)     Rebating or offering to rebate to a patient any portion of the funds received from the patient’s insurer, unless the sum rebated constitutes the refund of an overpayment to which the patient is lawfully entitled.

(13)     Advertising any free or reduced rate service without prominently stating in the advertisement the usual fee for that service.

(14)     Charging an insurer or other third-party payor a fee greater than a patient would be charged for the same service if the patient were paying directly.

(15)     Charging an insurer or other third-party payor a fee greater than the advertised fee for the same service.

(16)     Violating the provisions of G.S. 90-154.1.

(17)     Physical, mental, or emotional infirmity of such severity as to impair the ability to practice safely.

(18)     Violating the provisions of G.S. 90-151 regarding the extent and limitation of license.

(19)     Concealing information from the Board or failing to respond truthfully and completely to an inquiry from the Board concerning any matter affecting licensure.

(20)     Failing to comply with a decision of the Board that is final.

(21)     Committing an act on or after October 1, 2007, which demonstrates a lack of good moral character which would have been a basis for denying a license under G.S. 90-143(b)(1), had it been committed before application for a license.

(c)       If a licensee is found guilty in a contested case arising under subsection (b) of this section, the Board may assess the licensee the reasonable cost of the hearing held to make such a determination if the Board finds that the licensee’s defense at the hearing was dilatory or not asserted in good faith

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