ctjc £xaniiners - casewatch.org may treat any condition, disease, ... office in sacramento and...

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~ State of California ~ Edmund G. Brown Jr., Governor

a ;TAT( Of CAllfOOl\1~ • . . •

November 28, 2017

Stephen Barret t VIA Email

RE: Public Reco rds Request- Cyn thia Benkert, DC 23209

Mr. Barrett :

This responds to your request sent to the Board of Ch iroprac tic Examiners via emai l on Novembe r 23, 20 17. You have reques ted a copy of the accusa tion Cynt hia Benkert, D.C.

In respo nse to your inqu iry, enclosed are the cer tified docu ments per tain ing to you r request. If you have further questions regard ing this matte r, please con tact me at (916) 2, 5355 ext. 5362.

Be1 ega r (

Va erie James Manage m ent Services Technician

T (9 16) 263-5355 Board ?fCh iropracti c Exami ners

F (916) 263-5369 901 P St reet, Su ite 142A

TI /TDD (800) 735-2929 Sac ramento, Cal ifo rnia 958 14

Consumer Complaint Hotline www.chiro.ca.gov (866) 543-1311

XAVIER BECERRA Attorney General of California MARC D. GREENBAUM Supervising Deputy Attorney General SI-IAWNP. COOK Deputy Attorney General State Bar No. 117851

300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-9954 Fa~simile: (213) 897-2804

Attorneys for Complainant

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BEFORJrTHE

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9 BOARD OF CHIROPRACTIC EXAMINERS DEPARTMENT OF CONSUMER AFFAIRS

STATE OF CALIFORNIA lO

11 In the Matter of the Accusation Against:

12 CYNTHIA BENKERT, D.C. 3590 Claremore Avenue

13 Long Beach, CA 90808

14 Chiropmctic License No, DC 23209

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CARLOS SEALS, D.C. 8561 Nuevo Avenue, Suite B Fontana, CA 92335

17 Chiro1imctic Lice11sc No. DC 16052

Case No. AC 2017-1132

ACCUSATION AND PETITION TO REVOKE PROBATION

Case No. AC 2017-1133

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Complainant alleges:

PARTIES

1. Robert Puleo (Complainant) brings this Accusation solely in his official capacity as

23 the Executive Officer of the Board of Chiropractic Examiners, Department of Consumer Affairs.

24 2. On or about August 29, 1994, the Board of Chiropractic Examiners issued

25 Chiropractic License Number DC 23209 to Cynthia Benkert, D.C. (Respondent Benkert). The

26 Chiroprnctic License was in effect through December 24, 2015 when it was placed in inactive

27 status. The License expired on November 30, 2016, and has not been renewed.

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( CYNTHIA BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATION

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1 3. On or about July 19, 1984, the Board of Chiropractic Examiners issued Chiropractic

2 License Number DC 16052 to Cat'los Seals, D.C. (Respondent Seal$). The Cliiropractic License

3 was revoked effective June 1, 2001 following a hearing in the disciplinary case AC 2000-146.

4 The license was reinstated; revoked with revocation stayed, effective January 9, 2015, and placed

5 on probation for a terms of five (5) years subject to certain terms and conditions. The license is in

6 full force and effect at all times relevant to the charges brought herein and will expire on

7 November 30, 2017, unless renewed.

8 JURISDICTION

9 4. This Accusation is brought before the Board of Chiropractic Examiners (Board),

10 Departmt~nt of Consumer Affairs, under the authority of the following sections of the

11 Chiropractic Act (Act).1,

12 5. California Code of Regulations, title 16, section 355.1 states:

13 "The suspension, expiration, or forfeiture by operation of law of a license issued by the

14 board, or its suspension, or forfeiture by order of the board or by order of a court of law, or its

15 smrcnder without the written consent of the board shall not, during any period in which it may be

16 renewed, restored, reissued, or reinstated, deprive the board of its authority to institute or continue

17 a disciplinary proceeding against the licensee upon any ground provided by law or to enter an

18 order suspending or revoking the license or otherwise taking disciplinary action against the

19 licensee on any such ground."

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6. Section 102 of the Act states, in pertinent part, that the Board may suspend or revoke

a license to practice chiropractic or may place the license on probation for violations of the rnles

and regulations adopted by the Board or for any cause specified in the Chiropractic Initiative Act.

1 The Chiropractic Act, an initiative measure approved by the e!ectms on Novem_ber 7, 1922, while not included in the Business and Professions Code by the legislature, is set out in West's Aonotated California Codes as sections 1000-1 to 1000-19, and is included in Deering's California Codes as Appendix I, for rmwenicnt reference.

2The Chiropractic Act, an initiative measure. approved by the electors on November 7, .1922, while not included in the Busim,ss and Professions Code by the legislature, i~ set out in West,s Annotated California Codes as sections 1000-1 to 1000-19, aod is included in Deering=s California Codes as Appendix I, for convenient reference.

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1 7. Section 15 of the Act states that, "Any person who shall practice or attempt to

2 practice chiropractic, or any person who shall buy, sell or fraudulently obtain a license to practice

3 chiropractic, whether recorded or not, or who shall use the title "chiropractor" or "D.C." or any

4 word or title to induce, or tending to induce belief that he or she is engaged in the practice or

5 chiropractic, without first complying with the provisions of this act; "( or any licensee under this

6 act who uses the word "doctor" or the prefix "Dr." without the word "chiropractor," or "D.C."

7 immediately following his or her narne) 01· the use of the letters "M.D." or the words "doctor of

8 medicine," or the term "surgeon," or the term "physician," or the word "osteopath," or the letters

9 "D.O." or any other letters, prefixes or suffixes, the use of which would indicate that he or she

10 was practicing a profession for which he or she held no license from the State of California, or

1l any person who shall violate any of the provisions of this act, shall be guilty of a misdemeanor

12 and upon conviction thereof shall be punished by a fine of not less than one hundred dollars

13 ($1.00) and not more than seven hundred fifty dollars ($750), or by imprisonment in the county

14 Jail for not more than six months, or by both fine and imprisonment.

:15 8. California Codt1 of Regulations, title 16, section 304, states:

16 "The revocation, suspension, or other discipline by another state of a license or certificate to

17 practice chiropractic, or any other health care profession for which a license or certificate is

18 required, shall constitute grounds for disciplinary action against a chiropractic licensee or grounds

19 for the denial of chiropractic licensure of im applicant in this state."

20 9. California Code of Regulations, title 16, section 302, st.ates:

21 (a) Scope of Practice.

22 (1) A duly licensed chiropractor may manipulate and adjust the spinal column and other

23 joints of the human body and in the process thereof a chiropractor may manipulate the muscle and

24 connective tissue related thereto,

25 (2) As part of a course of chiropractic treatment, a duly licensed chiropractor may use all

26 necessary mechanical, hygienic, and sanitary measures incident to the care of the body, including,

27 but not limited to, air, c,0ld, diet, exercise, heat, light, massage, physical cultme, rest, ultrasound,

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water, and physical therapy techniques in the course of chiropractic manipulations and/or

adjustments.

(3) Other than as explicitly set forth in section 10(b) of the Act, a dnly licensed

chiropractor may treat any condition, disease, or injury in any patient, including a pregnant

woman, and may diagnose, so long as such treatment or diagnosis is done in a manner consistent

with chiropractic methods and teclmiqnes and so long as such methods and treatment do not

constitute the practice of medicine by exceeding the legal scope of chiropractic practice as set

forth in thig section.

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(5) A duly licensed chiropractor may employ the use of vitamins, food supplements, foods

for special dietary use, 01· proprietary medicines, if the above substances are also included in

section 4057 of the Business and Professions Code, so long as such substances are not includ_ed in

mateda medica as defined in section 13 of the Business and Professions Code. The use of such

substances by a licensed chiropractor in the treatment of illness or injury must be within the scope

of the practice of chiropractic as defined in section 7 of the Act."

lO. California Code of Regulations, title 16, section 303, states:

Each person holding a license to practice chiropractic in the State of California under any

and all laws administered by the board shall· file his proper and current place of practice address

of his principal office and, where appropriate, each and every sub-office, with the board at its

office in Sacramento and shall immediately notify the board at its said office of any and all

changes of place of practice address, giving both his old and his new address within 30 days of

22 change.

23 11.. California Code of Regt!lations, title 16, section 308, states:

24 (a) Each person holding a license shall display a current active license in a conspicuous

25 place in the licensee's principal office or primary place of practice.

26 (b) Any licensed Doctor of Chiropractic with more than one place of practice shall obtain

27 from the Board a Satellite Office C,ertificate for each additional place of practice. Said certificate

28 must be renewed anmmlly.

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1 ( c) A licensed Doctor of Chiropractic must display in a conspicuous place a current active

2 Satellite Office Certificate at the office for which it was issued. No licensed Doctor of

3 Chiropractic shall display any chiropractic license, certificate or registration, which is not

4 currently active and valid.

5 12. California Code of Regulations, title 16, section 311, states:

6 Constmctive educational publicity is encouraged, but the use by any licensee of advertising

7 which contains misstatements, :falsehoods, misrepresentations, distorted, sensational or fabulous

8 statements, or which is intended or has a tendency to deceive the public or impose upon credulous

9 or ignorant persons, constitutes grounds for the imposition of any of the following disciplinary

1.0 penalties: (a) Suspension of said Iicen~ee's right to practice in this State for a period not exceeding

11 one (l) year. (b) Placing said licensee upon probation. (c) Taking such other acl:ion, excepting the

12 revocation of said licensee's lice11se, in relation to disciplining said licensee as the'board in its

1.3 discretion may deem proper.

14 13. California Code of Regulations, title 16, section 312, subpart (b), states:

15 (b) Unlicensed individuals may conduct standard neurological, orthopedic, physical and

16 chh'opractic examinations, except they may not perform such examinations which require

17 diagnostic or analytic interpretations nor may they render a conclusion either verbally or in

18 · writing regarding the patient's physical condition. As an example, unlicensed individuals may not

19 perform evaluations of heart or lung soundings. Such individuals shall be at all times under the

20 immediate and direct supervision of a licensed Doctor of Chiropractic.

21 "Immediate and direc;t supervision" means the licensed Doctor of Chiropractic shall be at

22 all times on the premises where the examinations are being conducted. The licensed Doctor of

23 Chiropractic shall be responsible for the vedfication of the recorded findings and will be solely

24 responsible for rendering a conclusion based on the findings.

25 14. California Code of Regulations, title 16, section 316:

26 ( a) Every licensee is responsible for the conduct of employees or other persons subject to

27 his supervision in his place of practice, and shall insure that all such conduct in his place of

28 practice conforms to the law and to the regulations herein.

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( CYN'IllJA BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATION

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15. California Code of Regulations, title 16, section 317, states:

"The board shall take action against any holder of a license who is guilty of unprofessional

conduct which has been brought to its attention, or whose license has been procured by fraud or

misrepresentation or issued by mistake.

"Ullpl'ofessional conduct inclucles, but is not limited to, the following:

"(a) Gross negligence;

"(b) Repeated negligent acts;

"( c) Incompetence;

"( cl) The administration of treatment or the use of diagnostic procedures which are clearly

excessive as determined by the. customary practice and standards of the local community of

licensees;

"( e) Any conduct which has endangered or is likely to endanger the health, welfare, or

safety of the public;

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"(k) The commission of any act involving moral turpitude, dishonesty, or corruption,

whether the act is committed in the course of the individual's activities as a license holder, or

otherwise;

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"( q) The participation in any act of fraud or misrepresentation.

16, Caljfomia Code of Regulations, title 16, seetion 319.1 states:

21 (a) A licensed doctor of chiropractic shall verbally and in writing inform each patient of the

22 material risks of proposed care. "Material" shall be defined as a procedure inherently involving

23 known risk of serious bodily harm. The chiropractor shall obtain the patient's written informed

24 consent prior tO initiating clinical care. The signed written consent shall become part of the

25 patient's record.

26 (b) A violation of this section constitutes unptofossional conduct and may subject the

27 licensee to disciplinary action.

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COST RECOVERY 1

2 17. California Code of Regulations, title 1.6, section 317.5, subdivision (a), states, in

3 pertinent part:

4 "In any order in resolution of a disciplinary pror.eecling before tl1e Board of Chiropractic

5 Examiners, the board may request the administrative law judge to direct a licentiate found to have

6 committed a violation or violations of the Chiropractic Initiative Act to pay a sum not to exceed

7 the reasonable costs of the investigation and enforcement of the case."

8 "NutriMost SoCal"

9 18. "NutriMost Ultimate Fat Loss System" was developed by a Pennsylvania

:LO chiropractor, Ray Wisniewski ("Wisniewski"). Wisniewski travels'around the U.S. marketing

11 and selling his fat loss pxogram to other chiropractors and individuals as franchisees. According

12 to a complaint filed by the Federal Trade Commission (FTC) against Wisniewski and his

13 companies, NutriMost, ILC; NutriMost Doctors, I.LC deceptively marketed the NutriMost

14 weight-loss program to consmners. Sold at Wisniewski's eight locations in the Pittsburgh area

15 and by franchisees and licensees nationwide, the NutriMost System was marketed as using a new

16 technology ihat would allow users to safely lose substantial amounts of weight --typically 20 to

17 40 pounds or mo1·e in 40 days.

18 19. On or about April 21, 2017, the marketers of this weight-loss system advertised as

19 using "breakthrough technology" and "personalized supplements" to help consumers permanently

20 lose "20 to 40+ pounds in 40 days" without significantly cutting calories, agreed to settle a

21 Federal Trade Commission complaint that the claims were deceptive and not supported by

22 scientific evidence. The court order settling the FTC's charges bars the sellers of the "NutriMost

23 Ultimate Fat Loss System" from making the tleceptive claims alleged in the complaint, as well as

24 providing others, including franchisees, with the means of deceiving consumers. The defendants

25 also will pay $2 million to provide refunds to consumers defrauded by buying the system directly

26 from the defendants, not from franchisees.

27 lilljJs://www.ftc.gov/11ews-events/press-r~!~1,e,5/_2017LVA-/marketers-nutrimosL-ultinmttJ.::fat-loss-

28 1,ystem-settle-ftc-charges

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( CYNTI-JIA BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATION

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1 20. At all times herein alleged, Respondent Benkert was the owner of a business known

2 as "Nu.triMost SoCal" ("NMSC"), a franchisee of Wisniewski and/or his companies that solicited

3 consumers thrnugh a website www.nutrimostsocal.com and also through radio advertising,

4 narrated by Benkert. Benkert operated and oversaw operations at three Southern California

5 NMSC locations: Costa Mesa, Norco and Lakewood. Seals was on the staff of NMSC and

6 worked at the Lakewood and Costa Mesa locations on Tuesday and Thursdays and at the Norco

7 location on Monday and Wednesdays.

8 21. The online advertisement for the Program states: "START YOUR NEW LIFE

9 TODAY! We have created an Exclusive, Custom Weight Loss System which is completely

10 SAFE and has been PROVEN to work! I I Lose 20 to 40 or more pounds in only 40 Days! In fact,

11 we GUARANTEE A MINIMUM w:~jght[oss of 20 J,lOunds I

12 A Fat Loss Consultation includes the Body Composition Analysis, a Review of Your Analysis

13 and Health History, along with a Personalized Plan to meet your goals!

14 A $99 value, now for Ollly $27 (Secure Payment options include PAYPAL or your DEBrl' or

15 CREDIT CARD) Click Next to Schedule Your Appointment. Once your appointment is

16 confirmed, you will get an email and ifl-equested an automated text reminder."

17 22. Respondents represented the ''NutriMost program" ("Program") as a weight loss

18 program that includes a low calorie daily intake between 5-700, with only certain foods allowable

19 such as vegetables, fruits and protein with restriction of starches and sugarn. Consumers who

20 contract for 1he program are directed to discontinue using any products containing "oil" such as

21 makeup, deodorant and. shampoo as the elimination of these will promote "detoxification".

22 23. Respondents' represented that the Program which utilized dietary and topical

23 restrictions and. also supplements they sell to consumers, would. bring about a "super bad burning

24 mode" in reference to "fat". As part of the Program, consumers were recommended to purchase

25 a "Zyto Scan" where, they placed theil' hand on a pad. connected. to a device which purportedly

26 would. provide a "print out" of what "deficiencies" their body had in order to determine what

27 supplements would be necessary.

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l FDA Warning Letter to Zyto Scan

2 24. According to the Federal Government Food and Drug Administration (FDA), the

3 Zyto Scan was approved only for "the measurement of galvanic skin response." By adding

4 computer software, to allegedly look for organ dysfunction and determining what supplements to

5 provide and then use the Zyto Scan to "activate" the so-called ingredients in their off-the-shelf

6 supplements, takes this device out of its intended use. The FDA, they sent out a "Warning Letter"

7 to ZYTO Technologies, Inc,, mannfactmer of the Zyto Scan device on or about May 8, 2015,

8 because they WBre advertising the Zyto Scan as a "device used or intended for the use in the

9 diagnosis of disease or other conditions or in the cure, mitigation, treatment, or prevention of

10 disease, or are intended to affect the stmcture or function of the body of man or other animals. 11

11 Attached hereto as Exhibit A is a true and correct copy of the FDA "Warning Letter" to Zyto

12 Scan, which is incorporated by this reference.

13 l!ttps://www .fda.gov/iceci/enforcementactions/wamingletters/ucm446687.htm

14 25, Respondent Benkert claims that the Zyto Scan device "assesses 2800 different

15 frequencies of substances" such as "toxiiIB, hormones, supplements, organs as it sends the

16 resonant :frequency digital ec1uivalent o:F different foods." However, as the H)A has warned its

17 manufacturers, they have taken the FDA approval beyond what it was originally approved for and

l8 in marketing it to individuals such as Respondents, are not using the Zyto Scan for its intended

19 purpose or use. Benkert admits that she uses the Zyto Scan in her three offices of NMSC for

20 nutritional purposes and that she has her staff sell patients "non-toxic oils" because the toxins in

21 other malceup or creams will stop the body from healing. Respondent Seals states that "as long as

22 the body is toxic, the body cannot heal" and "everything you touch or put on your skin is a toxin."

23 Both Respondent Benkert and Seals admit that their treatment of patients with the Zyto Scan and

24 NutdMost does not constitute the practice of Chiropractic and assert that their PMA "licenses"

25 authorize their activity.

26 Patient P.E.

27 26. In April 2016, consumer P.E. heard Respondent Benkert's radio advertisement for her

28 Program. P .E. went to the website for more details and read that the Program would use

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( CYNTHIA BENKERT, n.c. and CARLOS SEALS, D.C.) ACCUSATION

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1 "supplements" and a "new technology" to clean out her system for a $27 consultation. P .E.

2 called NMSC and was given an appointment a day or two later and completed on line forms.

3 P .B. believed that she would be consulting privately with a "doctor", but when she arrived

4 discovered that she was one of :tour people present for "more of a sales pitch" by Respondent

5 Seals.

6 27. P.B. was briefly asked her doctor's name, and any general diseases or complaints.

7 Seals told the group that the Program consisted of removing toxins out of the body by using

8 supplements and technology of the Zyto Scm1. Seals guaranteed if the attendees followed the

9 Program, they would lose 20 lbs. during the 40-day program, and if'they didn't lose that much,

10 NMSC would put them through another Program without charge so long as they weren't

11 "cheating". P.E. was weighed, measured and her BMI calculated.

12 28. The presentation lasted 30-45 minutes and Seals told them that they would have to go

13 to the NMSC office weekly and meet with a counselor. They were quoted $1947 for the Program

14 and offered a payment plan. P.E. told Seals it was too expensive for her and he said they could

15 make it affordable for her. Seals told P .E. that once the office staff was trained, they could use

16 and administer the Zyto Scan device on patients. In fact, the Zyt~ Scan website at the time stated

17 that anyone could scan their own hand and send the results via e-mail to Zyto Scan.

18 29. P .E. was directed to Mother room with a counselor "Timi" who tried to convince her

19 the program was worth it and to sign up. P .E. was worried that she had been gone from work for

20 an hour but was convinced by Timi to make a $500 deposit with her VISA debit card and to

21 authorize future periodic billings by NMSC for its Program.

22 30. Timi went through the program again wiU1 P.E., administered the Zyto Scan

23 "analysis" and represented to patient P .E. tha:t the Zyto Scan results indicated the necessaiy

24 supplements that P.E. would have to take and gave her a food list. The Zyto Scan analysis for

25 P.E. plll'ported to show "Top 7 Vertebral Stressors"; meaning the Zyto Scan allegedly found 7

26 vertebral biomarkers associated with sedated nerves_. The Zyto Scan device purportedly detected

27 vertebral misalignments at "C2, Th4, Th8, Th!O, LS, S2, and S4" in patient P .E.

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1 31. The written Zyto Scan results for P.E. state that' the Zyto Scan device uses "advanced

2 technology with the biocommunication technology, the computer sends a signal to the body in the

3 form of a virtual stimulus, your body responds with very subtle changes in the electrical

4 properties of your skin and the hand cradle measures these changes and sends that informatio'n

5 back to the computer; it's like the computer's asldng your body a question and yom· body's

6 answering. Using this advanced teclmology, we are now able to access the reaction of the body as

7 it relates to these biological sl:ressors. This technology has enabled us to create this roadmap that

8 we call the NutriMost Ultimate Fat Loss scan which helps us find a clear direction for your path

9 to fat loss and health ... we focus on the technology that enables us to turn OFF fat storage and

lO Turn ON Fat burning. 11

11 3 2. P .E. was told she could not use any products with "oils" and began to calculate what

12 it would cost her to purchase all the foods, supplements and special products to get the promised

13 weight loss results. P.E. was also told it was ilnportant to drink only "alkaline water" in the

14 Program but was not. told why. P.E. ret1Jrned to work and ready up on the program and concluded

15 that she would not be able to make her car payment with the cost of the Program and decided to

16 cancel it.

17 33. The next morning, P.E. sent Seals' office an email and requested to cancel the

18 contract and be refunded her $500, Two clays later she received a response, asking what she

19 meant. Timi told P.E. tl1at she would have to speak to the "owner", Respondent Benkert who

20 would get back to her. Two clays later, Timi called P.E. and told her she would not be getting a

21 refund and that NMSC would not cancel the contract. P.E. called Benkert and left a voicemail

22 though her calls were not retumed. P.E. went to her bank and cancelled her credit card so no

23 other charges could be made by Respondents.

24 34. Thereafter, NMSC contacted her at least twice a month and tried running her debit

25 card unsuc-cessfully. P.E. never opened the supplements and they remained in the same condition

26 she received them. P.E. spoke to the office manager "Dianne" who proposed that NMSC would

27 stop attempting to collect on the balance of its fee of $1947 and keep the $500 deposit that NMSC

28 contended was to cover 1he fee for the Zyto Scan "analysis" This compromise was not acceptable

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1 to P.E. who believed the Zyto Scan was "not accurate and a bit dicey." P.E. filed a consumer

2 complaint with the Board on or about April 29, 2016.

3 35, Seals and Benkert both maintain "Pastoral Medical Association" (PMA) "licenses"

4 that they contend permit them to administer their NutriMost Program to consumers. PMA' s

5 website proclaims that it is "private ecclesiastical based health and wellness association" using

6 Biblical principles, PMA is not a duly authorized governmental health licensing authority and its

7 "licenses" convey no legal authority for a health care practitioner to talce a medical history,

8 diagnose, analyze, recommend a treatment plan and then charge patients a monetary fee for those

9 services, as Benkert and Seals did

10 36. In 01· about July 2016, Benkert "let Seals go" and he no longer works for NMSC, nor

11 does his wife.who had been an office manager, because Seals was not "closing enough cases." It

12 was "too expensive" for Seals to buy his own NutriMost franchise. Up to then, Seals had been

13 signing up a.bout 40-60 Pro grain patients a month in Benkert's offices.

14 FIRST CAUSE FOR DISCIPLINE

15 (Failed to Practice Chiropractic as Defined)

16 37.. Respondents Benkert and Seals are sub,iect to disciplinary action under California

1.7 Code of Regulations, title 16, section 302, subd. (a) (1-3) for failure to practice chiropractic as

18 defined in the examination, diagnosis and treatment of patient P.E. Complainant incorporates

19 paragraphs 18 through 36 and further alleges cirGUmstanccs as follows:

20 3 &. Respondent Benke1t' s PMA "license" does not authorize her lmlicensed employee,

21 Timi to take P.E., or any other patient's prior medical history, examine, diagnose, analyze, and

22 recommend a treatment plan and then charge patients a monetary fee for those services. Since

23 Timi was unlicensed and Benkert, who owned NMSC also had an inactive license, Bellkert failed

24 to practice chiropractic as statutorily defmed. Benkert's purporting to offer diagnosis and

25 treatment for weight loss, which was not ancillary or adjunct to the practice of Chiropractic was

26 beyond the scope of Chiropractic practice and such diagnosis and treatment was not authorized by

27 Benkert's PMA "license".

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12 ( CYNTl'UA BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATJON

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1 39. Respondent Seals, to the extent that he, or any non-licensee under his supervision,

2 diagnosed or analyzed P .E. using the Zyto Scan acted as a healthcare practitioner and a consent to

3 treat form should have been verbalized. and signed by P.E. or any other such patients. Seal's

4 purpoiting to offer diagnosis and treatment for weight loss, which was not a11Gil!ary or adjunct to

5 the practice of Chiropractic was beyond the scope of Chiropractic practice and such diagnosis and

6 treatment was not authorized by Seal's PMA "license".

7 SECOND CAUSE FOR DISCIPLINE

8 (Failure to Practice Duly Licensed Chiropractic)

9 40. Respondent Benkert is subject to disciplinary action under California Code of

10 Regulations, title 16, section 302, subd. (a) (5) for failure in her responsibility that the conduct by

11 all persons working on her business premises conform to the for the conduct on her business

12 premises to practice duly licensed Chiropractic in her treatment of patient P .E. Complainant

13 incorporates paragraph~ 18 through 36 and further alleges circumstances as follows:

14 41. Respondent Benkert's Chiropractic License was inactive at the time she and her staff

15 rendered treatment to patient P.E, and Benkert was not duly licensed to practice Chiropractic.

16 THIRD CAUSE FOR DISCIPLINE

17 (Allowing Unlicensed Activity)


19 Regulations, title 16, section 312, snbd. (b) for conduct concerning the examination, diagnosis

20 and treatment of patient P .E. that r.onstitutes an extreme depart.urn from the standard of care of

2l Chiropractic. Complainant incorporates paragraphs 18 throllgh 36 and further alleges

22 circumstances as follows:

23 43. Benkert allowed Timi, her im!icensed employee, to perform an exam, diagnose or

24 make analytic interpretations and then manufacture a treatment plan for patient P.E., without

25 immediate, direct snpervision and verification of the findings.

26 I I I

27 II I

28 I I I

13

( CYNTHIA BENKERT, D.C. and CARWS SEALS, D.C.) ACCUSATION

1

2

3

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FOURTH CAUSE FOR DISCIPLINE

(Responsibility for Conduct on Premises)

44. Respondent Benkert is subject to disciplinary action under Califotnia Code of

4 Regulations, title 16, section 316, for failure to exercise her responsibility that all conduct by

5 persons working on her business premises conform to the applicable law and to the regulations.

6 Complainant incorporates parngraphs 18 through 36 and further alleges circumstances as follows:

7 45. Benkert allowed Timi, her unlicensed employee, to perform an exam, diagnose or

8 make analytic interpretations and then manufacture a treatment plan for patient P .E., without

9 immediate, direct supervision and verification of the findings.

10 FIFTH CAUSE FOR DISCIPLINE

11

12

(Extreme Departme from the Standard of Care)

46. Respondent Benkert is subject to disciplinary action under California Code of

13 Regulations, title 16, section 317, subd. (a) for conduct c.onceming the examination, diagnosis

14 and treatment of patient P.E. that constitutes an extreme departure from the standard of care of

15 Chiropractic. Complainant incorporates paragraphs 18 through 36 and further alleges


17 47. Benkert allowed Timi, her unlicensed employee, to perform an exam, diagnose or

l8 make analytk interpretations and then manufactme a treatment plan for patient P .Ee, without

19 immediate, direct supervision and verification of the findings. Benkert's conduct constilutes an

20 extreme departure form the standard of care.

21 SIXTH CAUSE FOR DISCIPLINE

22 01xtreme Departure from the Standard of Care)

23 48. Respondents Benkert and Seals are subject to disciplinary action under California

24 Code of Regulations, title 16, section 31.7, suhd. (a) for conduct in the examination, diagnosis and

25 treatment of patient P .E. that constitutes an extreme departure from the standard of care of

26 Chiropractic. Complainant incorporates paragraphs 18 tlwough 36 and ful'thel' alleges


28

14

( CYNTHIA BENKERT, D.C, and CARLOS SEALS, D.C.) ACC.."USAT!ON

(

l 49. Responde11ts' use or permitting tho use of the Zyto Scan device on patient P.E., to

2 diagnose or treat any disease or condition, including directing a purported regimen of substances

3 for weight loss, for which the device was not properly intended or approved, was an extreme

4 departure from the standard of practice of Chiropractic,

5 SEVENTH CAUSE FOR DISCIPLINE

6 (Repeated Negligent Act~)

7 50. Respondents Benkert and Seals are subject to dfaciplinary action under California

8 Code of Regulations, title 16, section 317, subd. (b) for repeated conduct that constitutes a

9 departure from the standard of care of Chiropractic in the examination, diagnosis and treatment of

10 patient P.E. Complainant incorporates paragraphs 18 through 36 and furthet alleges


12 51. Respondent~' reliance on the Zyto Scan device to allegedly detect vertebral

13 misalignments at "C2, Th4, Th8, Th!O, 15, S2, and S4" in patient P.E. was a departure from the

14 standard of practice of Chiropractic.

15 52. Respondents' relying upon the Zyto Scan device to determine what nutritional

16 supplements patient P.E. wonld need for "weight loss" was a departure from standard of practice

17 of Chiropractic.

l8 53. The Zyto Scan website at the time represented that one could "scan animals if

19 positioned so that all 6 contact points make contact with the animal; otherwise it can be used for a

20 surrogate test ( where someone is tested while ho ]ding the m1imal)." Such representations

21 constitute shamanism and the use of the Zyto Scan device on patient P.E. was a departme from

22 the standard of practice of Chiropractic.

23 54. Respondent Benkert demonstrated negligence when she represented during the

24 Board's investigation of P.E, 's complaint that she uses tlie. Zyto Scan device in all three of her

25 offices for nutritional purposes.

26 I II

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28 II I

15 ( CYNTfUA BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATION

1

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3

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EIGHTI-I CAUSE FOR DISCIPLINE

(Incompetence)

55. Respondents Benkert and Seals are subject to disciplinary action under California

4 Code of Regulations, title 16, section 317, subd. (c) for the lack of possession of or the failure to

5 exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a

6 competent chiropractor in the examination, diagnosis and treatment of patient P .E. for weight

7 loss. Complainant incorporates paragraphs 18 through 36 and further alleges circumstances as

8 follows:

9 56. Respondent Benkert demonstrnted incompetence when she represented during the

10 Board's investigation of P.E. that the Zyto Scan device "might kinda sound whoo, but it's all

11 based on science." In fact, that representation is not true as the FDA has" confirmed in its warning

12 letters to the Zyto Scan device manufacturer.

13 57. Respondents' reliance on the Zyto Scan device to allegedly detect vertebral

14 misaHgmnents at "C2, Th4, Th8, ThlO, 15, S2, and S4" inpatient P.E. was incompetence,


16 supplements patient P.E. would need for "weight loss" was incompetence.

17 59. The Zyto Scan website at the time represented that one could "scan animals if

18 positioned _so that all 6 contact points make contact with the. animal; otherwise it can be used for a

19 surrogate test (where someone is tested while holding the animal)." Such representations

20 constitute shamanism and the nse of the Zyto Scan device on patient P.E. was incompetence.

21 60. Respondent Benkert demonstrated incompetence when she represented during the

22 Board's investigation of P.E.'s complaint that she uses the Zyto Scan device in all three of her 3

23 offices for imtritional purposes,

24 61. During the investigation of P .E. 's complaint, Respondent. Benkert stat.eel that she has

25 her staff sell "non-toxic oils" because the toxins in other makeup or creams will stop the body

26 :from healing. Respondent Seals stated, "as long as the body is toxic, the body cannot. heal" and

27 "everything you touch or put. on your skin is a toxin." These statements demonstrate

28 incompetence.

16 ( CYNTHIA BENKERT, D.C. and CARLOS SEALS, D,C,) ACCUSATION

:l

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NINTH CAUSE FOR DISCIPLINE

(Conduct that Endangers or is Likely to Endanger)

62. Respondents Benkert and Seals are subject to disciplinary action under California

4 Code of Regulations, title 16, section 317, subd. (e)) for conduct which has endangered or is

5 likely to endanger public health, welfare, or safety in the examination, diagnosis and treatment of

6 patient P.E. for weight loss. Complainant incorporates paragraphs 18 through 36 a11Cl further

7 alleges circumstances as follows:

8 63. Respondent Benkert allowed Timi, her unlicensed employee, to perform an exam,

9 diagnose or make am1lytic inttirpretations and then manufacture a treatment plan for patient P.E.,

10 without immediate, direct supervision and verification of the findings.

l1 64. Respondents' reliance on the Zyto Scan device to allegedly detect vertebral

12 misalignments at "C2,.Th4, Th8, Th!0, LS, S2, and S4" in patient P.E. endangered or was likely to

13 endanger her health, safety and welfare.

14 65, Respondents' utilization of the NutriMost system which dictates a restricted diet for

15 starches and sugars and allowing only between 500 - 700 calories per day, with minerals or

16 supplements purchased from Respondents, endangered or was likely to endanger public health,

17 safety or welfare. The sta11darcl of care in such a situation would be for a chiropractor or medical

18 doctor to take a thorough past medical history, and examination including blood pressure,

_19 temperatme and routinely perform or order blood tests before recommending these types of

20 aggressive caloric restrictions. Further, the patients should be routinely monitored, all of which

21 Respondents failed to do.

22 TENTH CAUSE FOR DISCIPLINE

23 (Acts Involving Dishonesty)

24 66, Respondents Benkert and Seals are subject to disciplinary action under California

25 Code of Regulations, title 16, section 317, subd. (k) for dishonest conduct in the examination,

26 diagnosis and treatment of patient P .E. for weight loss. Complainant incorporates paragraphs 18

27 through 36 and further alleges circumstances as follows:

28

17 .

( CYNT!UA BENKEKf, D.C. and CARWS SEALS, D.C.) ACCUSATION

1 67. During the investigation of P.E.'s complaint, Respondent Benkert stated that she does

2 not use "DC" anywhere on her advertising. This representation was false since Benkert states her

3 Chiropractic credentials on her NutriMost web site advertising.

4 68. Respondents' representations to patient P.E. that the Zyto Scan device detected

5 vertebral misalignments at "C2, Th4, Th8, Th!O, LS, S2, and S4" was false.

6 69. Dusing the investigation of P.E.'s complaint, Respondent Bel)kert stated that "every

7 diet is customized for every individual even though all patients are taking the same types of

8 vihm1ins and minerals provided to them off-the-shelf". This representation that diets are

9 customized is false if the patients are taking the same vitamins and minerals.

10 70. Respondent Benkert's representation that all of the bottles ta.ken off the shelf

11 (nutrients, supplements that Respondents sell to patients) have a baseline, but that they then use

12 laser lights on the vitamin bottles or the Zyto Scan to allegedly emit a resonant frequency recipe

13 (laser) that embeds the formula for each bottle according to their Zyto Scan results is an act of

14 dishonesty.

15 ELEVENTH CAUSE FOR DISCIPLINE

16 (Acts of Fraud or Misrepresentation)


18 Code of Regulations, title 16, section 317, subd. (q) for dishonest conduct in the examination,

19 diagnosis and treatment of patient P.E. for weight. loss. Conwlainant incorporates paragraphs 18

20 through 36 and further alleges circumstauc,es as follows:

21 72. Respondent Benkert represented during the Board's investigation of P.E. that the

22 Zyto Scan device "might kinda. sound whoo, bu:t it's all based on science." is a fraud or

23 misrepresentation since the FDA has confirmed in its warning letters to the Zyto Scan device

24 manufacturer that there is no scientific basis for utilizing the device as Respondents have.


26 vertebral misalig1m1ents at "C2, TM, Th8, ThlO, LS, S2, and S4" was a fraud or

'XI misrepresentation.

28

18

( CYNTHIA BENKERT, D.C. and CARLOS SEALS, D.C.)ACC'USATION

( (

1 74. During the investigation of P.E.'s complaint, Respondent Benkert stated that "every

2 diet is customized for every individual even though all patients are taking the same types of

3 vitamins and minerals provided to them ofl~the-shelf", This representation was a fraud or

4 misrepresentation.

5 75. Respondent Benkert's representation that all of the bottles taken off the shelf

6 (nutrients, supplements that Respondents sell to patients) have a baseline, but that they then use

7 laser lights on the vitamin bottles or the Zyto Scan to allegedly emit a resonant frequency recipe

8 (laser) that embeds the formula for each bottle according to their Zyto Scan results is an act fraud

9 or misrepresentation,

10 TWELFTH CAUSE FOR DISCIPUNE

11 (Failure to Provide Informed Consent)


13 Code of Regulations, title 16, section 31.9.1 for failnre to provide informed consent prior to the

14 treatment of patient P.E. for weight loss. Complainant incorporates paragraphs 18 through 36 and

15 further alleges circumstances as follows:

16 77. Respondents failed to verbally and in writing inform P .E. of the material risks of their

17 proposed weight loss treatment. Respondents failed to obtain patient P .E. 's written informed

18 consent prior to initiating any clinical care.

19 THIRTEENTH CAUSE FOR DISCIPLINE

20 (Failure to File Place of Pl'ttctice with the Board)

21 78. Respondent Seals is subject to disciplinary action under California Code of

22 Regulations, title 16, section 303 for failnre to file his snb-office address information for practice

23 at Respondent Benkert's "NutriMost SoCal" within 30 days of his bcghming work there.

24 FOURTEENTH CAUSE FOR DJSC'IPLINE

25

26

(Failure to Purchase or Display Satellite Office Certificate)

79. Respondent Seals is subject to disciplinary action under California Code of

27 Regulations, title 16, section 308 for failure to obtain from the Board a Satellite Office Certificate

28

19


(

1 for his place of practice at Respondent Benkert' s ''NutriMost SoGal" and to display the

2 Certificate· at that business.

3 Patient. M.D.

4 80. In the first quarter of 2015, consumer M.D. heard Respondent Benkert's radio

5 advertisement for her Program that guaranteed a 20-40-pound weight loss in 40 days. M.D. made

6 an appointment to go to Benkert's Costa Mesa office for a "consultation" for which his credit

7 card was charged $27 over the phone. M.D. went to Respondent's Costa Mesa office on May 21,

8 2015. M.D. met Diane Seals, Respondent Seal's wife, who worked as a front desk receptionist,

9 Diane Seals had M.D. fill out a health questionnaire.

10 81. M.D. then met with Respondent Seals who asked him about his medical conditions

11 and family history, M.D. told Seals that he was being treated fOl' Testosterone deficiency and

12 that his father had pancreatic cancer. Seals told M.D, the Nutl'iMost diet plan guarantees 20-45

13 pmmds' weight loss in 40 days. Seals told him that most people lose up to 40 pounds in 40 days,

14 Seals told M.D. there was a 500 calories per day restriction, but reassured him that he would not

15 be hungry because of the vitamins and minerals that he would be taldng.

16 82. Seals told M.D. that Respondent Benkert's NutriMost Program required that he buy

17 and take a few different supplements, vitamins, shampoo and soaps because there are chemicals

18 in regular soaps and shampoo, Seals told M.D, that he would need to drink alkaline water that

1.9 the Program would provide.

20 83, The $27 "consultation" fee charged to M.D.'s credit card turned out to be a ruse to get

21 patients like him into Benkert' s NutriMost offices. In the subsequent investigation of a complaint

22 filed by M.D. against Respondents, Seals admitted that the consultation fee was actually payment

23 for a "Body Composition Analysis" (BCA), and alter the BCA is performed, Seals discusses the

24 NutriMost Program with patients. Seals convinced M.D. that the Program was a good diet and

25 that a lot of people were able to lose a lot of weight. M.D. felt that he was b.eing coerced into

26 signing the diet pbm contract for $2,297.00 where he-paid $1,000.00 through a credit account

27 with Synchrony Bank that Respondents opened for him. Additionally, Seals had M.D. sign an

28 authorization for 3 monthly debit withdrawals of$432.33 from his bank account. M.D. believed

20

( CYNTHIA BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATlON

(

l that he was not given the opportunity to consult with his regular medical doctor because he felt

2 pressured that he had to make a decision on the spot. $1,497.00 o:f the charge was for Fat Loss

3 Scan (NRF)_ Tecl1nology and the rest was for hormone formula, detox formula, supplements,

4 journal and manual.

5 84. M.D. stated that after he signed the contract and paid the fee, Respondent Seals took

6 him to the room next door where the scanning was done. Diane Seals entered information on a

7 computer and then placed M.D.'s hand on the Zyto Scan device. M.D. scanned his hand for 3-4

8 minutes. After this a report printed out which Diane Seals appeared to read. The Zyto Scan

9 analysis for M.D. purported to show "Top 7 Vertebral Stressors"; meaning the Zyt:o Scan

10 allegedly found 7 vertebral biomarkers associated with sedated nerves. The Zyto Scan

11 purportedly detected vertebral misalignments specifically listed patient M.D. at spinal levels "C4,

12 Th5, Th5, 15, S3, S4". Diane Seals then went to a cupboard and picked three brown bottles that

13 she then set one by one in front of the Zyto Scan. Diane Seals told M.D. that the Zyto Scan emits

14 rays that change the contents of the bottles to be customized specifically for M.D.'s diet. Diane

15 Seals told M.D. that the report indicated that he needed testosterone, pancreatic and kidney

16 support. M.D. was perplexed since U1is was the specific health information that. he had given to

17 Diane Seals during the health questionnaire intake. M.D. never met or saw Respondent Benkert.

18

19

20

21

22

23

2A

25

26

27

28

85. M.D. was provided these Nutl'iMost products by Respondents:

' a, NutriMost NRF Embedded Frequencies Carrier Hormone bottle with dropper;

b. NutriMost NRF Embedded Frequencies Carrier Detox bottle with dropper;

c. NutriMost NRF Embedded H·equencies Carrier Weight Loss bottle with dropper;

. d. NutriMost TestoMost - Comprehensive Hormone Rejuvenation Support;

e. NutriMost RenaMost - Superior Kidney Support;

f. NutriMost Hydro Vitalize - Superior Minerals & Cellular Hydration Support

Featuring Fnlvfo Acid;

g. NutriMost. PancreMost - Superior Pancreatic Support;

h. NutriMost Hydro-Molecular - Unsurpassed Active Molecular Hydrogen;

i. Premier Pink Salt (12 oz.);

21

( CYNTHIA BENKERT, D,C. and CARLOS SEAI.S, D.C.) ACCUSATION

(

1 j, NutriMost So Cal, bottle watel' for alkaline water.

2 86. M.D, went home with the above vitamins, minerals and hormone supplements but he

3 was not 'provided with a copy of the NutriMost contract and the scanning report. M.D. received a

4 copy of the contract and NRF scam1ing report days later after he requested them from Seals.

5 M.D. never used any of the material and the bottles lt)mained unopened,

6 87. Following his appointment with Respondent Seals, M.D. consulted with his doctor,

7 Bradley W. Kays, M.D. Kays advised M.D. not to him not to go through with the NutriMost diet

8 because the 500 calorie diet was too extreme and might endanger M.D.'s health. The following

9 Monday, May'25, 2015, M.D. telephoned Seals to cancel the NutriMost Program. It was

10 Memorial Day weekend and M.D. left a voicemail. The following day a woman called him back.

11 After M.D. told her he wanted to cancel she put him "on hold" and ended up telling him she could

12 not give him an answer.

13 88. M.D. went back to the Costa Mesa office on Thursday May 28. He met Seals and

14 explained to him that he could not do the 500 calorie per day diet because his doctor advised him

15 against it. Seals appeared understanding and told M.D. that if he brought all the unopened

16 material back to the Respondents' office, he might cancel the Program and receive a full refund of

17 his money. However, Seals said that he would have to contact Respondent Benkert and inform

18 her since she was the owner of the company.

19 89. M.D. waited while Seals contacted Benkert by phone. Benlrnrt's position was that her

20 contmct with M.D. included a "no cancellation clause" but in a follow-up email on May 29,

21 Benkert offered M.D. half of his money back if he returned all the material that he had been

22 pwvided. M.D, paid a total o:f $1,432.33 to Respondent: Benkert and has 1101 received any

23 refund from either Seals or Benkert. Ho filed a complaint with the Board on or about October'?,

24 2015.

25 90. During the Board's investigation ofM.D.'s complaint, Benkert was interviewed and

26 stated that the Zyto Scan device scans a patient for their bio-communication resommt frequency

27 to find out what hormones are out of bala11ce, what: toxins are present in the body, what nutritional

28 deficiencies are present and what organs need to be supported. Benkert stated that based on the

22

( CYNTHIA BBNKERT, D,C. and CARLOS SEALS, D.C.) ACCUSATION

( (

1 scan her Program was able to make custom homeopathic formulas for detoxification, weight loss,

2 energy hormones and nutritional deficiencks for l1er patients, Benkert claimed this was done by

3 using "laser lighfthat sends out the same resonant frequency recipe that shows up in the report.

4 The laser light shines into the brown colored bottles" and the "bottles have a base of vitamins and

5 minerals in them and the lasers transmit the resonant frequency into the liquid one by one as it sits

6 in front o:f the emitting laser tower, Benkert stated that once the start button is pushed, that

7 particular recipe will get embedded into the bottle, "its very similar to homeopathic medicine."

8 FIFI'EENT.H CAUSE FOR DlSCIPLINE



11 Regulations, title 16, section 302, subd. (a) (1-3) for failure to practice chiropractic as defined in

12 the examination, diagnosis and treatment of patient M.D. Complainant incorporates paragraphs

13 18 through 25 and 80 to 89, and further alleges circumstanms as follows:

14 92. Respondent Benkert's PMA "license" does not authorize her unlicensed employee,

15 Diane Seals to take M.D., or any other patient's prior medical history, examine, diagnose,

16 analyze, and recommend a treatment plan and then charge patients a monetary fee for those

17 services, Since Diane Seals was unlicensed and Benkert, who owned NMSC also had an inactive

18 license, Benkert failed to practice ohil'opractic as statutorily defmed. Benkert's purporting to

19 offer diagnosis and treatment for weight loss, which was not ancillary or adjunct to the practice of

20 Chiropractic was beyond the scope of Chiropractic practice and snch diagnosis and treatment was

21 not authorized by Benkert's PMA "license".

22 93. During the course of the Board's investigation, Benkert stated she does not perform

23 any chiropractic care at her three office locations and that she has put her Chiropractic License

24 into an "inactive" status as she is "burnt out" on chiropractic, She said her passion was not

25 chiropractic so she sold her practice and decided lo only do nutrition,

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SIXTEENTII CAUSE FOR DISCIPLINE

(Failure to File Place of Practice with the Board)

94. Respondent Benkert is subject to disciplinary action under California Code of

4 Regulations, title 16, section 303 for failure to file her snb-office address information for practice.

5 Complainant incorporntes paragraphs 1.8 through 25 and 80 to 89, and further alleges

6 circumstances as :follows: During the Board's investigation, Benkert stated she "manages 3

7 different office locations" in Costa Mesa, Lakewood and Norco, CA. However, Respondent

8 failed to list any of these three office locations as either a primary or Satellite Office location.

9 SEVENTEENTH CAUSE FOR DISCIPLINE

10 (Failme to Purchase or Display Satellite Office Certificate)

11 95. Respbndent Benkert is subject to disciplinary action under California Code of

12 Regulations, title 16, section 308 for failure to obtain from the Board a Satellite Office Certificate

13 for her three places of practice and to display these at the locations. Complainant incorporates

14 paragraphs 18 through 25 and 80 to 89, and further alleges circumstances as follows: During the

15 Board's investigation, Benkert stated she "manages 3 different office locations" in Costa Mesa,

16 Lakewood and Norco, CA However, Respondent failed to obtain and display Satellite Office

17 Certificates for any of tl1e locations.

18 EIGHTEENTH CAUSE FOR DISCIPLINE

19 (Failme to Purchase or Display Satellite Office Certificate)


21 Regulations, title 16, section 311 for the use o:f advertising which contains misstatements,

22 falsehoods, misrepresentations, distorted, sensational or fabulous statements, or which is intended

23 or has a tendency to deceive the public or impose upon credulous or ignorant persons.

24 Com.plai:nant incorporates paragraphs 18 through 25 and 80 to 89, and further alleges ' .

25 circumstances as fo !lows:

26 97. Respondent caused to publis4 an advertisement that stated her NutriMost Program

27 was "Professionally Supervised" with "Customized Plan". However, these representations were

28 false since in her weight loss treatment of patients P.E. and M.D., Timi and Diane Seals,

24

( CYNTHIA BENKERT, D.C. aud CARLOS SEALS, D.C.) ACCUSATION

(

1 xespectively, administered the Zyto Scan and directed the alleged vitamins or supplements that

2 the patients should take without professional supervision,

3 NINETEENTH CAUSE FOR DISCIPLINE

4 (Failure to Use Word Chiropractor to Induce Belief that Is a Medical Doctor)


6 Regulations, title 16, section 311 for the use of advertising which contains misstatements,

7 falsehoods, misrepresentations, disto1ted, sensational or fabulous statements, or which is intended

8 or has a timdcncy to deceive the public or impose upon credulm1s or ignorant persons.

9 Complainant incorporates paragraphs 18 through 25 and 80 to 89, and further alleges


11 99. Respondent caused to publish a second advertisement for her weight loss Program

12 that listed "Dr. Cynthia Benkert" wi1hout designating whether or not she was a chiropractor,

13 medical doctor, or other type of physician. This constitutes the failure to use the word

14 "chiropractic, chiropractor, or letters DC" in advertising to induce a belief the chiroprnctor is an

15 MD or other physician and is an advertising violation and also a violation of Section 15.

16 1WEN'TIETH CAUSE FOR DISCIPLINE

17 (Allowing Unlicensed Activity)

18 100, Respondent Benkert is subject to disciplinary action under California Code of

19 Regulations, title 16, section 312, subd, (b) for conduct concerning the examination, diagnosis

20 and treatment of patient M.D. that constitutes an extreme departme from the standard of care of

21 Chiropractic. Complainant inco1·porates paragraphs 18 through 25 and 80 to 89, and further


23 101. Benkert allowed Diane Seals, her unlicensed employee, to perform an exam, diagnose .

24 or make analytic i11terpretations and then manufacture a treatment plan for patient M.D., without

25 immediate, direct supervision and verification of the findings.

26 II I

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1 TWENTY-FIRST CAUSE FOR DISCIPLINE

2 (Responsibility for Conduct on Premises)

3 102. Respondent Benkert is snbject to disciplinary action under California Code of

4 Regulations, title 16, section 316, for failure to exercise her responsibility that all conduct by

5 persons working on her business premises conform to the applicable law and to the regulations.



8 103. Benkert allowed Diane Seals, her unlicensed employee, to perform an exam, diagnose

9 or make analytic interpretations and then manufacture a treatment plan for patient M.D, without

10 immediate, direct supervision a11d verification of the findings.

11 TWENTY-SECOND CAUSE FOR DISCIPLINE

12 (Extreme Dep~rtul'e from the Standard of Care)


1.4 Regulations, title 16, section 317, subd. (a) for conduct c,oncernh1g the examination, diagnosis

15 and treatment of patient P .E. that constitutes an extreme departure :li:om the standard of care of

16 Chiropractic. Complainant incorporates paragraphs 18 through 25 and 80 to 89, and further


18 105'. Benkert allowed Diane Seals, her unlicensed employee, to perform an exam, diagnose

l.9 or make analytic interpretations and then manufacture a treatment plan for patient M.D., without

20 immediate, direct supervision and verification of the findings. Benkert's conduct constitutes an

21 extreme departure form the stm1dard of care.

22 106. When M,D. desired to cancel the Program and obtain a refund of money he had paid

23 to Benkert, Benkert told him that she woiild refund half his payment rf he returned the bottles of

24 vitamins and supplements that he had been provided in unope11ed condition. However, Benkett's

25 employee Diane Seals bad represented that the Zyto Scan had emitted rays over the bottles that

26 had changed their composition and customized them for M.D.'s weight loss program. This

27 contradiction of how the substances could be wturned if the substances were already energized

28

26


\ (

1 specific to patient M.D. 's "customized" weight loss requil'ements, constitutes a further extreme

2 departure from the standard of care.

3 107. Respondent's use or permitting the use of the Zyto Scan device on patient M.D., to

4 diagnose or treat any ·di,sease or condition, including directing a purported regimen of substances

5 for weight loss, for which the device was not properly intended or approved, was an extreme

6 departure from the standard of practice of Chiropractic.

7 TWENTY-THIRD CAUSE FOR DISCIPLINE

8 (Repeated Negligent Acts)


10 Regulations, title 16, section 317, subd. (b) for repeated conduct U1at constitutes a departure from

11 the standard of care of Chiropractic in the examination, diagnosis and treatment of patient M.D.



14 109. Respondents' reliance on the Zyto Scan device to allegedly detect vertebral

15 misalignments at spinal levels "C4, Th5, Th5, 15, S3, S4" in patient M.D. was a departure from



J.8 supplements patient M.D. would need for "weight loss" was a departure from the standard of

19 practice of Chiropractic.

20 111. In her interview with the Boatd investigator during tho course of the investigation,

21 Benkert stated the Zyto Scan scans a patient for their bio communication resonant frequency to

22 find out what hormones are out of balance, what toxins are present in the body, what nutritional

23 deficiencies are present and what organs need to be supported. For Respondent to rely upon the

24 Zyto Scan device to make these determinations is a departure from the standard of practice


26 positioned so that all 6 contact points make contact with the animal; othe1wise it can be used for a


28

27


( (

:I. constitute shamanism and the use of the Zyto Scan device on patient M.D. was a departme from


3 113. Respondent Benkert demonstrated negligence when she represented during the

4 Board's investigation of P.E.'s complaint that she uses the Zyto Scan device in all three of her

5 offices for nutritional purposes.

6 TWENTY"FOURTI-I CAUSE FOR DISCIPLINE

7 (Incompetence)

8 114. Respondent Benkert is subject to disciplinary action und©r California Code of

9 Regulations, title 16, section 317, subd. (c) for the lack of possession of or the.failure to exercise

10 that degree of learning, skill, care and experience ordinarily possessed and exercised by a

11 competent chiropractor in the examination, diagnosis and treatment of patient M.D. for weight

12 loss. Complainant incorporates paragraphs 18 through 25 and 80 to 89, and further alleges


14 115. Respondent Be11kert demonstrated incompetence when she represented during the

15 Board's investigation ofM.D. that the Zyto Scan device "might kinda sound whoo, but it's all

16 based on science." In fact, that representation is not trne as the J:<1)A has confirmed in its warning

17 letters to the Zyto Scan device manufacturer.

J.8 116. Respondent's reliance on the Zyto Scan device to allegedly detect vertebral

19 . misalignments at "C4, Th5, Th5, LS, S3, S4" in patient M.D. was incompetence.

20 117. Respondent's relying upon the Zyto Scan device to determine what nutritional

21 supplements patient M.D. would need for "weight loss" was incompetence.


23 positioned so that all 6 contact points make contact with the animal; othe1wise it can be used for a

24 surrogate test (where someone is tested while holding the animal)." S11ch representations

25 constitute shamanism and the use of the Zyto Scan device on patient M.D. was incompetence.


27 Board's investigation 1hat she uses the Zyto Scao device in all three of her offices for nutritional

28 pmposes; that Hie Zyto Scan scans a patient for their bio" communication resonant frequency to

28

( CYNTHIA BENKERT, D.C. and CARLOS SBALS, D.C.) ACCUSATION

( (

1. find out what hormones are out of balance, what toxins are present in the body, what nutritional

2 deficiencies are present, what organs need to be supported; and that the Zyto Scan device can

3 alter the composition of and customize the supplements and vitamins that she sells to particular

4 weight-loss patients.

5 120. Benkert demonstrated incompetence when she stated that she has her staff sell "non-

6 toxic oils" because the toxins in other makeup or creams will stop the body :from healing.

7 TWENTY-FlFTH CAUSE FOR DISCIPLINE

8 (Conduct that Endangers or is Likely to Endanger)

9 12:L. Respondent Benkert is subject to disciplinary action under Califol'llia Code of

10 Regulations, title 16, section 317, subd. (e)) for conduct which has endangered or is likely to

11 endanger public health, welfare, or safoty in the examination, diagnosis and treatment of patient

12 M.D, for weight loss. Complainant incorporates paragraplL~ 18 through 25 and 80 to 89, and

13 further alleges circmnstances as follows:

14 122. Respondent Benkert allowed Diane Seals, her nnlicenscd employee, to perform an

15 exam, diagnose or make analytic interpretations and then manufacture a treatment plan for patient

16 M.D., without inunediate, direct supervision and verification of the findings.

17 123. Respondent's reliance on the Zyto Scan device to allegedly detect vertebral

18 misalignments at "C4, Th5, Th5, L5, S3, S4" in patient M.D. endangered or was likely to

19 endanger his health, safety and welfare.

20 124. Respondent Benkert represented during the Board's investigation that the Zyto Scan

21 device "might kinda sound whoo, but it's all ba.~ed on science." Such a representation endangers

22 or was likely to endanger the patient's health, safety and welfare since the FDA has confirmed in

23 its warning letters to the Zyto Scan device manufacturer that there is no scientific basis for

24 utilizing the device as Respondents have, by purporteclly scanning the skin of the patient's hand

25 and detecting "harmonic" deficits as it relates to the patient's internal organs, hormone

26 deficiencies and then computing the supplements as well as the foods the patient is supposed to

27 eat for weight loss. It further endangers or is likely to endanger the patient's health by asserting

28 that the Zyto Scan device is capable of altering the molecular composition of the supplements and

29

(CYNTHIA.BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATION

(

1 vitamins Respondent sells to 1he patient to make them "customized" for 1he patient's diagnostics,

2 in conjunction with his restricted diet.

3 125, Respondent's utilization of1he NutriMost system which dictates a restricted diet for

4 starches and sugars and allowing only between 500 - 700 calories per day, with minerals or

5 supplements purchased from Respondents, endangered or was likely to endanger public health,

6 safety or welfare, The standard of care in such a situation would be for a chiropractor or medical

7 doctor to take a thorough past medical history, and examination including blood pressure,

8 temperature and routinely perform or order blood tests before recommending these types of

9 aggressive caloric restrictions. Further, the patients should be routinely monitored, all of which

10 Respondent failed to do.

11 TWENTY-SIXTH CAUSE FOR DISCIPLINE



14 Regulations, title 16, section 317, subd. (k) for dishonest conduct in the examination, diagnosis

15 and treatment. o:fpatient M.D. for weight loss. Complainant incorporates paragraphs 18 tlu·ough

16 25 and 80 to 89, and further alleges circumstances as follows:

17 127. During the investigation of M.D, 's complaint, Respondent Benkert stated that she

18 does not use "DC" anywhere on her advertising, This representation was false since Benkert

19 states her Chiropractic credentials on her NutriMost web site advertising.

20 128. Respondents' representatjons to patient M,D, that 1he Zyto Scan device detected

21 vertebral misalignments at "C2, Th4, Th8, ThlO, LS, S2, and S4" was false.

22 129. Respondent's representation to M.D. that he was being given a diet customized for

23 him, even though he was given the same types of vitamins and minerals provided to him off-the-

24 shelf after the Zyto Scan device allegedly emitted altering rays on the bottles was false.

25 130. Respondent's representation 1hat all of the bottles taken off the shelf (nutrients,

26 supplements that Respondents sell to patients) have a baseline, but that they then use laser lights

27 on the vitamin bottles or the Zyto Scan to allegedly emit a resonant frequency recipe (laser) that

28 embeds the formula for each bottle acr,0rding to their Zyto Scan results is an act of dishonesty.

30


C

1 131. Respondent's reliance on the Zyto Scan device to allegedly detect vertebral

2 misalignments at "C4, Th5, Th5, 15, S3, S4" in patient M.D. was an act of dishonesty.

3 132. Respondent's reliance on the Zyto Scan to allegedly scan M.D, for his bio

4 communication resonant frequency to find ont what hormones were out of balance, what toxins

5 were present in his body, what nutritional deficiencies were present and which of his organs

6 needed to be supported was an act of dishonesty.

7 133. Respondent's representation that she has her staff sell "non-toxic oils" because the

8 · toxins in other makeup or creams will stop the body from healing is a dishonest statement.

9 TWENTY-SEVENTH CAUSE FOR DISCIPLINE

10 (Acts of Fraud or Misrepresentation)


12 Regulations, title 16, section 31.7, subd. (q) for dishonest conduct in the examination, diagnosis

13 and treatment of patient M.J;). for weight loss. Complainant incorporates paragraphs 1.8 through

14 25 and 80 to 89, and further alleges circnmstances as follows:

15 135. Respondent Benkert represented during the Boru·d's investigation that the Zyto Scan

16 device "might kinda sound whoo, but it's all based on science." is a :fraud or misrepresentation

17 since the FDA has confirmed in its warning letters to the Zyto Scan device manufacturer that

18 there is no scientific basis for utilizing the device as Respondent has on patient M.D.


20 vertebral misalignments·at "C4, ThS, Th5, 15, S3, S4" inpatient M.D. was an act of fraud or


22 13 7, Respondent Be11kert' s representation that.all of the bottles taken off the shelf

23 (nutrients, supplements that Respondent sells to patients) have a baseline, but that they then use

24 the Zyto Scan to allegedly emit a resonant frequency recipe (laser) that embeds the formula for

25 each bottle according to their Zyto Scan results, is an act ft'aud or misrepresentation.


27 positioned so that all 6 wntact points make contact with the animal; otherwise it can be used for a


31

( CYNTHIA BBN!illRT, D.C. and CARLOS SEALS, D.C.) ACCUSA'.110N

(

1. constitute shamanism and the use of the Zyto Scan device on patient M.D. was an act of fraud or


3 TWENTY"EIGHTH CAUSE FOR DISCIPLINE


5 139. Respondent .Beukert is subject to disciplinary action under California Code of

6 Regulations, title 16, section 319.1 for failure to provide informed consent prior to the treatment

7 of patient M.D. for weight loss. Complainant incorporates paragraphs 18 through 25 and 80 to

8 89, and further alleges circumstances as follows:

9 140. Respondent failed to verbally and in writing inform M.D. of the material risks of their

10 proposed weight loss treatment. Respondent failed to obtain patient M.D.'s written informed


12 TWENTY"NINI'H CAUSE FOR DISCIPLINE

13 (False and Misleading Advertising)

14 141. Respondent .Benkert is subject. to disciplinary action under California Code of

15 Regulations, title 16, section 311 and Section 15 of the Act for false and misleading advertising.



18 142, Respondent caused to run an advertisement that guaranteed a weight loss of 20"40

19 pounds. The ad also stated it was "p!'ofessionally supervised" and a "customized plan". In fact,

20 the representations were false and misleading based on the treatment provided to patients P .E. and

21 M.D. Respondent: permitted her unsupervised staff Timi and Diane Seals to perform the Zyto

22 Scan and· to administer the alleged vitamins or supplements based on the alleged Zyto Scan

23 analysis and altering laser rays on said vitamins or supplements. Respondent failed to provide a

24 customized plan as the alleged Zylo Scan 1ransformation of Respondent's stock vitamins and

25 supplements was false.

26 143. Respondent caused to mn a second ad that listed her as "Dr. Cynthia .Benkert"

27 without designating whether she was a medical doctor, chiropractor or other type of physician.

28

11-------------- .. ·-----------------------i ( CYNTHIA BENKERT, D.C. and CAIUDS SEALS, D.C.) ACCUSATION

32

(

1 This constitutes a failure to use the word "Chiropractic" or the initials "D,C." to induce a believe

2 in consumers that the chiropractor is an M.D. or other physician.

3 Patient R.M.

4 144. On or about October 19, 2016, consumer R.M. saw Respondent Benkert's print

5 advertisement in the Premier Value Magazine for her Program that guaranteed a 20-40-pound

6 weight loss in 8 weeks and was "discounted." R.M. made an appointment to go to Benkel't's

7 Norco office for a short presentation of 15-30 minutes done by Benkert herself with one other

8 person present that day. Benkert told R.M. that being overweight could increase the potential for

9 cancer and other diseases. Benkert performed a body analysis on R.M. and told her that she had

lO the body of an 87·· year old based on her weight. Dnring her presentation, Respondent did not

11 discuss the side effects of a 500 calorie per day diet or the supplements. Benkert allowed patients

12 to ask questions cltu·iog her prnsentation, but presented in a way that she tells patients, "this is a

13 one-time deal, and you need to sign up today if you want to lose weight." During the

14 presentation, Respondent stated that she was trained as a chiropractor. ·Following the

15 presentation, Benkert asked R.M. if she was interested in the program and she said, "Yes." R.M.

16 informed Benkert that she had high blood pressure and was told to text Respondent and tell her

17 what her blood pressure readings were daily. Respondent guarantees that you will lose 20-40

18 lbs.': on her Progrnm and tl1at if you don't lose the weight, you can re--do the program.

19 145.· RM: was then directed to the receptionist who took her to another room where she

20 was told by the receptionist that the (Zyto Scan) device would analyze and determine what areas

21 R.M. was deficient in when she put her hand in the device's cradle. The receptionist obtained a

22 print out from the device and then brought ont several bottles of supplements and vitamins. She

23 gave R.M. a book along with the supplements that explained how she should take each of them.

24 She said she was told to put: "5 ml drops nnder the tongue and then to put 20 drops in her water

25 and drink it all day long by sipping it." R.M. al~o had to take the snpplements with the drops, and

26 she could only eat 500 calories day. She was also instructed to weigh all of her food, and could

27 not have any oil, sugar or carbs while on the diet. R.M. was told that she was also only allowed

28 to use a certain kind of deodorant, shampoo and make-up that was all .natural. R.M. was told that

33

( CYN'l'l-IlA BENKERT, D.C. and CARLOS SEALS, D.C.) ACCUSATION

l

1 the first day when she started the diet, she could only eat nuts. R.M. was told that, "It didn't

2 matter what kind, as long as it was a nut." R.M. chose to eat pumpkin seeds. R.M was required

3 to go into the office and weigh-in once a week with the receptionist, a patient does not see

4 Respondent Benkert after the initial presentation.

5 146. R. M. paid for the Program on October 19, 2016, but she didn't start the diet until

6 November 7, 2016. She was told the diet wm1ld cost approximately $2,000 and she paid with

7 two different credit cards. She was scared to start the diet, so she didn't begin immediately. A

8 week later she made an appointment to go in and speak to Benkert about the diet before starting

9 it. She started eating the seeds on the day she knew she was going to see Benlcert because she

10 knew she would get a chance to express her concerns and get her q1Jestions answered. When

11 R.M. went to Benkert's office she met with the receptionists and not Respondent. The

12 receptionist complimented R.M on how "rosy" her skin looked. R.M told the receptionist that she

13 thought she might have had an ailel'gic reaction to the pumpkin seeds. R.M. 's face felt hot the

14 entire day, and she believed she was having a reaction to the seeds because she had never eaten

15 pumpkin seeds before.

16 147. The next morning, after taking the supplements that she purchased from Respondent,

17 R.M. experienced itching, and reddish skin and bumps on her face and chest. She phoned

l8 Respondent Benkert' office to report this and requested to speak to Benkert. Late that afternoon,

19 she still had not heard from Benkert and then spoke with her husband, B.M. who emailed to

20 Benkel't. At or about 1050 pm on November 8, 2016, Respondent Be11kert replied by email to

21 B .M. and directed to "stop all formulas and supplements but continue with the foods and pink salt

22 only and we can talk tomorrow." R.M. never heard back :from Respondent Benl<ert and did not

23 try to phone her again. R.M. has never made a formal request to Benkert for the return of money

24 she was paid and has only disputed the fee with her credit card company. R.M. called and set-up

25 another appointment, but never went to it.

26 'Ill

27 I/ I

28 I I I

34 ---------------( CYNTHIA BENKERT, D.C. and CAl{LOS SEALS, D.C.) ACCUSATION

(

l THIRTIETH CAUSE FOR DISCIPLINE

2 (Failure to Use Word Chiropractor to Induce Belief that Is a Medical Doctor)


4 Regulations, title 16, section 311 for the use of advertising which contains misstatements,

5 falsehoods, misrepresentations, distorted, sensational or fabulous statements, or which is intended

6 or has a tendency to deceive the public or impose upon credulous or ignorant persons.

7 Complainant incorporates paragraphs 18 through 25 and 144 through 147, and further alleges


9 149. Respondent caused to publish an advertisement for her weight loss Program that

10 "guarantees" losing 20 - 45 pounds in 40 days' and listed herself as "Dr." and/or used the phrase

11 "Doctor supervised" without identifying she was a chiropractor. This constitutes the failure to use

12 the word "chiropractic, chiropractor, or letters DC" in advertising to induce a belief the

13 chiropractor is an MD or other physician and is an advertising violation and also a violation of

14 Section 15.

15 THIRTY-FIRST CAUSE FOR DISCIPLINE



18 Regulations, title 16, section 302, St1bd. (a) (1-3) fo1· failure to practice chiropractic as defined in

19 the examination, diagnosis and treatment of patient R..M. Complainant incorporates paragraphs

20 144 through 147 and further alleges circumstances as follows:

21 151. Respondent Benkert purports to hold a PMA "license". This ersatz license does not

22 authorize any of her unlicensed employees to take R.M., or any other patient's prior medical

23 history, examine, diagnose, analyze, and recommend a treatment plan and then charge patients a

24 monetary fee for those services. Since Benkert, who owned NMSC had an inactive license, Hhe t.

25 failed to practice chil'opractic as statutorily defined, Benkert's pmporting to ofter diagnosis and

26 treatment for weight: loss, which was not ancillary or adjunct to the practice of Chiropractic was

27 beyond tl1e scope of Chiropractic practice and such diagnosis and treatment was not authorized by

28 Benkert's .PMA "license",

35

( CYNTHIA BENKERT, D.C, and CARLOS SEALS, D.C.) ACCUSATION

( (

l

2

THIRTY-SECOND CAUSE FOR DISCIPLINE

(Allowing Unlicensed Activity)


4 Regulations, title 16, section 312, subd, (b) for conduct conceming the examination, diagnosis

· 5 and treatment of patient R.M. that constitutes an extreme departme from the standard of care of

6 Chiropractic. Complainant incorporates parngraphs 144 through 14'7 and further alleges

'7 circumstances as follows:

8 153. Benkert allowed her unlicensed employee receptionist to perform an exam, diagnose

9 or make analytic interpretations and then manufacture a treatment plan for patient R.M., without

10 immediate, direct supervision and verification of the findiugs.

11. THIRTY-THIRD CAUSE FOR DISCIPLINE

12 (Respo1mibi!ity for Couduct on Premises)

13 154, Respondeut Benkert is subject to disciplinary action under California Code of

14 Regulations, title 16, section 316, for failurn to exercise her responsibility that all conduct by

15 persons working. on her business premises conform to the applicable law and to the regulations.

16 Complairrnnt incorporates paragraphs 144 through 147 and further alleges circumstances as

17 follows:


19 or maim analytic i11terpretatio11s and then manufact11re a treatment plan for patient RM., without ·

20 immediate, direct supervision and verification of the fimlings,

21 THIRTY-FOURTH CAUSE FOR DISCIPLINE

22 (Extreme Departure from the Standard of Care)


24 Regulations, title 16, section 31'7, subd. ( a) for conduct concemi:ng the examination, diagnosis

25 and treatment of patient R.M. that constitutes an extreme departure from the standard of care of

26 Chiropractic. Complainant incorporates paragraphs 144 through 14 '7 and further alleges

2'7 circumstances as follows:

28 / / /

36

( CYNTHIA BENKERT, D.C, and CARLOS SEALS, D.C.) ACCUSATION

( (


2 or make analytic interpretations and then manufacture a treatment plan for patient R.M., without

3 immediate, direct supervision and verification of the fi11di11gs. Benkert's conduct constitutes an

4 extreme departure form the standard of care.

5 158. Benkert was not aware until she was interviewed by the Board's investigator that

6 R.M. had a pre-existing condition of hypertension.

7 THIRTY-FIFTH CAUSE FOR DISCIPLINE

8 (Repeated Negligent Acts)


10 Regulations, title 16, section 317, subd. (b) for repeated conduct that constitutes a departure from

11 the standard of care of Chiropractic in the examination, diagnosis and treatment of patient P .E.

12 Complainant incorporates paragraphs 144 through 147 and farther alleges circumstances as

13 follows:

14 160. With regards to the Zyto Scan' s printed report of patient R.M., Benkert admitted

15 during the Board's investigation that "we are not trained to read" these reports: Relying upon

16 and diagnosing and providing a treatment plan based upon a report that a chiropractor can not

17 interpret constitutes a departure from the standard of care.

18 161. During 1hc Boal'd's investigation, Benkelt was asked what each bottle of supplements

19 contained or What it was used for, to which she could not provide adequate explanation.

20 THIRTY-SIXTH CAUSE FOR DISCIPLINE

21 (Incompetence)

22 162. Respondent Benkert is subject to disciplinary action nnder California Code of

23 Regulations, title 16, section 317, snbd. (c) for the lack of possession of or the failure to exercise

24 that degree of learning, skill, care and experience ordinarily possessed and exercised by a

25 competent chiropractor in the examination, diagnosis and treatment of patient R.M. for weight

26 loss. Complainant incorporates paragraphs 144 through 147 and farther alleges circllmstances as

27 follows:

28

37


I (

1 163. With regards to the Zyto Sean's printed report of patient R.M., Benkert admitted

2 during the Board's investigation that "we are not trained to read" these reports. Relying upon

3 and diagnosing and providing a treatment plan based upon a report that a chiropractor can not

4 interpret constitutes a departure from the standard of care.


6 Board's investigation of R.M. tlmt she does not know what the Zyto Scan device does and stated

7 "that would be like asking me what an x-ray does or what electrical stimulation machine does."

8 TI-ITRTY-SEVENTH CAUSE FOR DISCIPLINE

9 (Excessive or Unnecessary Treatment.)


l1 Regulations, title 16, section 317, subd. (d) for unnecessary or excessive treatment. regarding her

12 treatment of patient R.M. J'or weight Joss. Complainant incorporates paragraphs 144 through 147

13 and further alleges circumstances as :follows;

14 166. Benkert admitted during the Board's investigation, concerning supplements that her

15 office prescribed to R.M. that "PancreMost" bottle "supports the pancreas." The label states it is

16 primarily rools and leaves. Benkert stated the "CardioMost" would "support the heart."

17 However, on RM's Scale Measurement there is no indication following the Zyto Scan reading

18 that R.M. 's pancreas or heart that needed "supporting" and therefore stJch purported treatm(mt,

19 including selling these supplements to R.M. was excessive or unnecessary.

20 THIRTY-EIGHTH CAUSE FOR DISCIPLINE

21 (Conduct that Endangers or is Likely to Endanger)

22 167. Respondent. Benkert is subject to disciplinary action under Califomia Code of

23 Regulations, title 16, section 317, subd. (e)) for conduct which has endangered or is likely to

24 endanger public health, welfare, or safety in the examination, diagnosis and treatment of patient

25 R.M. for weight loss. Complainant incorporates paragraphs 144 through 147 and further alleges

26 circumstances as follows;

27

28

38


1 168. Respondent Benkert allowed her unlicensed employee receptionist to perform an

2 exam, diagnose or make analytic interpretations and then manufacture a treatment plan :for patient

3 R.M., without immediate, direct supervision and verification of the findings.

4 169. Benkert was not awarn until she was interviewed by the Board's investigator that . '

5 R.M. had a pre-existing condition of hypertension.

6 170, Respondent Benkert's admission that she does not know what the Zyto Scan device

7 does and statement "that would be like asking me what an x-ray does or what electrical

8 stimulation machine does" is an endangerment to the health, welfare and safety of the public

9 since the Zyto Scan device is recognized by the FDA only as a skin galvanic resistance device

10 and adding the NutriMost computer to it to pmpmt to tailor a weight loss program, violates the

11 FD A's accepted _pmpose of the device and takes it out of its intended usage.

12 THIRTY-NINTH CAUSE FOR DISCIPLINE



15 Regulations, title 16, section 317, subd. (k) for dishonest conduct in the examination, diagnosis

16 and treatment o:f patient R.M. for weight loss. Complainant incorporates paragraphs 144 thrnugh

17 147 and farther alleges circumstances as follows:

18 172. In her adve1tising, Benkert used the phrase "doctor supervised" that implies she was

· 19 acting as a licensed health care practitioner; however, in her statements to the~ Board investigator

20 she contended she was not practicing chiropractic and simply owning and managing a

21 NutriMost franchise with three locations. Dlll'ing the investigation ofP.E.'s complaint,

22 Respondent Benkert stated that she does not use "DC" anywhere on her advertising; however., this

23 representation was false since Benkert represents her Chiropractic credentials on her NutriMost

24 web site advertising.

' 25 173. Benkert required R.M. to sign up fol' her Program as a "Member" of the Pastoral

26 Medial Association (PMA), an organization not recognized by any state, federal or regulatory

·· 27 health care agencies as a legitimate governauce body, as a subterfuge to attempt to by-pass her

28 professional chiropractic duties and responsibilities. Further, the PMA membership agreement

39 ( CYNTIDA BENKERT, D.C. and CARLOS SEArn, D.C.) ACCUSATION

( (

1 purports to require the patient to go throngh a PMA dispute resolution process with the threat of

2 legal action if they do not.

3 174. Respondent Be1tlrnrt purported to provide R.M. with a weight loss Program and sold

4 her dietary supplements allegedly based on diagnostic findings of the Zyto Scan device, for which

5 lhe device is not approved by the FDA.

6 FORTIETH CAUSE FOR DISCIPLINE



9 Regulations, title 16, section 319.1 for failure to provide informed consent prior to the treatment

10 of patient R.M. for weight loss. Complainant incorporates paragraphs 144 through 14 7 and

11 further alleges circumstances as follows:

12 176. Respondent failed to verbally and in writing inform R.M. of the material risks of her

13 proposed weight loss treatment. Respondents failed to obtain patient P.E.'s written informed


15 PETITION TO REVOKE PROBATION

16 (Against Respondent Seals, Only)

17 177. In the prior proceeding before the Board, In the Matter of the Petition for

18 Reinstatement of Revoked License of Carlos Seals, OAI-I No. 2013100679, Respondent Seals

19 previously revoked Chiropractic License Number DC 16052 was reinstated, revoked, and placed

20 on certain terms and conditions of probation for a term of five (5) years, effective January 9,

21 2015. Attached hereto as Exhibit B, is a true and correct copy of the Decision in the underlying

22 Accusation No. 00-146 that resulted in the revocation,ofRespondent Seals' Chiropractic License

23 Number DC 16052 effective June 1, 2001, following hearing. Attached hereto as Exhibit C, is a

24 trne m1<l correct copy of the Decision reinstating Respondent Seals' Chiropractor License and

25 placing it on five years' probation effective January 9, 2015

26 178. As one of his terms and conditions of probation, Respondent Seals was required to

27 "[O]bey all federal, state and local laws, and all statutes and regulations governing the practice of

. 28 chiropractic in California." (Exhibit C, p. 5, para. 4) Good cause exists to lift the stay of

40

( CYNTI-IIA BENKERT, D.C. and CARLOS SEAi$, D,C.) ACCUSATION

.( ( '

1 revocation of Respondent Seals' Chiropractic License Number DC 16052 and revoke the License

2 because he has failed to obey all statutes and regulations governing the practice of chiropractic in

3 California. The circumstances are as alleged in the preceding Fil'st through Fourteenth Causes

4 for Discipline that are incorporated herein by reference as though set forth.

5 PRAYER

6 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

7 and that following the hearing, the Board of Chiropractic Examiners issue a decision:

8 1. Revoking or suspending Chiropractic License Number DC 23209, issued to Cynthia

9 Benkert, D.C.

10 2. Ordering Cynthia Benkert to pay the Board of Chiropractic Examiners the reasonable

1l costs of the investigation and enforcement of this case, pursuant to Title 16, California Code of

12 Regulations, section 317.5;

13 3, Revoking or suspending Chiropractic License Number 16052, issued to Carlos Seals,

14 D.C.;

15 4. Ordering Carlos SeaL~ to pay the Board of Chiropractic Examiners the reasonable

16 costs of the investigation and enforcement of this case, pursuant to Title 16, California Code of

17 Regulations, section 317.5;

18

19

20

21

22

23

24

25

26

5. Lifting the previous stay of revocation of Chiropractic License Number 16052, issued

to Carlos Seals, D.C., and revoking the License; and

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

DATED: __ f'\'l !io,/c-1 YL~,~~~----i l..Llf..l ~LEO

Executive Officer Board of Chiropractic Examiners Department of Consumer Affairs State of California Complainant

LA2017603452 27 52542396.docx

28

41

( CYNTHIA BENKEln', D.C. and CARLOS SEALS, D.C.) ACCUSATJON

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