Southern Utah News Articles
Top Stories for November 24, 2010
Van Dyke found guilty of lesser charge
The jury returned November 17 after two hours of deliberation to give Judge Marvin Bagley their verdict, after hearing three days of testimony in the case of the State of Utah versus Albert Van Dyke. Van Dyke was facing three, second degree felony (F2) charges of forcible sexual abuse, for allegations stemming from his treatment of three women patients in 2003 and 2004 when he was a practicing physical therapist (PT) in Kanab. Van Dyke now resides in Idaho, after having his license to practice previously revoked by the Utah Dept. of Occupational and Professional Licensing (DOPL).
All three victims had similar experiences while under the care of Van Dyke and a fourth woman gave additional testimony implicating him, although her case was not a part of the counts brought against him because of restrictions posed by the statute of limitations. Judge Bagley allowed her testimony because it described similar grievances and corroborated the testimony of the other victims and, according to the judge, “made the other victims testimony more palpable.”
The names of the victims will not be identified here, nor will details of the offenses each victim experienced be described, even though they are a matter of public record. The three charges against Van Dyke came from accusations by the victims that he made inappropriate contact with their private parts during therapy sessions.
All the women had been seen by their physician for musculo-skeletal ailments, and referred to Van Dyke for evaluation and treatment. They all stated that their first few sessions transpired without incident.
When conventional therapy was found not to benefit these patients, Van Dyke offered to treat them with, as two victims described it, “an unorthodox treatment that was new and practiced only by him, as far as he knew, but with which he has had great success,” presumably in treating the type of ailments afflicting these women.
Working under a signed general consent form, but failing to obtain a specific consent for employing his “unconventional methods” of treatment, Van Dyke initiated his techniques on these patients. Each one of them described themselves as being, “very uncomfortable and embarrassed” during the procedure, which they described involved palpating or massaging one or both of their breasts.
The question was asked by Deputy District Attorney Robert Van Dyke if anyone else was present in the treatment room during these manipulations and all answered “no,” nor did any of them see anyone in the clinic when they exited, as in each case it was after closing hours when the treatment finished.
Defense Attorney William Leigh asked each of them if they had protested this form of treatment or asked him to stop the proceedings. Each one answered they did not and reiterated they had “established a trust of health care professionals,” feeling they do what they can to help people get better. They said Van Dyke constantly reassured them that what he was doing would improve their condition.
None of the women questioned these proceedings initially. Only after, as one of the women described it, “I had a gut feeling this was wrong,” did they stop treatments.
In his defense, Van Dyke told the jury he had learned the general principles of the strain-counter strain technique from a 30-hour continuing education course he took in 2001. He said he had treated over a hundred men and women using deep fascia (connective or supporting tissue) mobilization of the pectoralis major and minor muscles of the chest wall to relieve shoulder and back pain from injuries or deviations in the musculo-skeletal system.
“Often I would have to move breast tissue out of the way to get to a point on the sternum or rib cage, but I was careful in doing so and did not unduly handle their breast tissue,” said Van Dyke. The women involved did not corroborate his statement.
“I also had patients put on gowns or I would drape them with sheets and have my aide in the room with me,” he said. But, the patients refuted this statement again, when they said they were exposed and no one was ever in the room with him.
An expert witness called upon by the defense actually reinforced the case against the defendant when he testified as to the standards of care a PT is to adhere to and the fact that Van Dyke’s “unorthodox” method of treating the maladies these women had was an acceptable practice.
Dr. Scott Ward PhD., the department chairman at the University of Utah School of Physical Therapy, stated a PT can diagnose functional impairment and prescribe a course of treatment, but cannot diagnose pathology, which is in the realm of the physician. He went on to describe the standards of practice (SOC) that were violated during Van Dyke’s treatment of these patients.
A patient should remain clothed, if possible, or have on a gown or be draped so as not to expose their private areas, and if exposure is needed, a family member or assistant should be in the room. If a breast needs to be moved out of the way, the patient should be asked to facilitate that or the use of a cloth or garment should be employed.
You need to obtain a waiver or consent, beyond a general consent, for any special techniques to be employed. There is no reason to approach a woman from the back and reach under the breasts to evaluate sterno-costal pain. It is also the SOC to document treatment modalities used and the response by the patient to those interventions on the patient’s medical record.
There is no medical indication or technique for finding a “motor unit” as Van Dyke claimed he was trying to do.
Albert Van Dyke had not followed the practice standards for his profession while treating these patients as a physical therapist. The state DOPL conducted their own investigation in 2004 and found several instances of unprofessional conduct.
Van Dyke’s “unorthodox methods” were not recognized as a treatment procedure for the aforementioned back and shoulder problems, and he did not receive any training on them from a recognized PT school. He did not document these procedures on the patient’s medical record. He failed to obtain proper consent from the patients for these procedures. He failed to assure that a chaperone was in the room during these procedures.
In the end, Van Dyke’s professional license was revoked for grossly negligent and professional misconduct, involving sexual exploitation of female patients, according to a certified copy of the DOPL report.
The jury had three choices to consider:
1) Guilty of forcible sexual abuse (Felony 2);
2) Guilty of a lesser (misdemeanor A) charge of sexual battery;
3) Not guilty.
“The evidence for a guilty finding is overwhelming,” stated District Attorney Jim Scarth, in his closing statement.
Attorney Leigh reminded the jury the state needed to meet its burden of proof for a felony conviction and each element had to be met or they had to consider the lesser charge or find the defendant not guilty.
The criteria for rendering a verdict for forcible sexual abuse was not met by the state. It could not be proven (nor did the state try to prove) that Van Dyke performed these acts to gratify his sexual needs or that he intended to cause these woman substantial emotional pain by using these unfounded techniques on them. However, the commonality of the testimony of all of these women could not be dismissed.
Van Dyke was found guilty of three counts of sexual battery, which meant he intentionally touched the private areas of the victims and knew, or should have known, that his touch would cause significant emotional distress to the victims.
Leigh asked the defendant remain free on a $45,000 bail bond, but Judge Bagley ruled against that motion after considering the fact Van Dyke failed to show up for a preliminary hearing and was arrested on a bench warrant in Idaho, plus he had been convicted of abusing an officer in Sanpete County.
Van Dyke was immediately incarcerated in the Kane County Jail where a pre-sentence report will be conducted prior to sentencing on January 27. “It is likely that I’ll sentence you to jail time in these cases, so you might as well get started on it,” concluded Judge Bagley.