Texas Court Limits Chiropractic Scope

Stephen Barrett, M.D.

A district court judge has ruled that chiropractors must limit their diagnoses to biomechanical conditions of the spine and musculoskeletal system. The judge's order ended a four-year lower-court battle that pitted the Texas Medical Association (TMA) and Texas Medical Board )against the Texas Board of Chiropractic Examiners (TBC) and Texas Chiropractic Association (TCA). The judge's reasoning is spelled out in the decision letter below.

The TMA initiated the suit in 2006 to block TBC rules that would permit chiropractors to perform clinical needle electromyography (EMG) and spinal manipulation under anesthesia (MUA), which, the TMA charged were beyond the chiropractors' lawful scope of practice. The TMA also challenged whether chiropractors should have the right to "diagnose" medical conditions. MUA has some respectable use for treating frozen shoulder or knee problems, but spinal MUA has none. Aetna's Clinical Policy Guide provides a detailed discussion of MUA. In November 2009, the judge ruled that Texas law prevents chiropractors from performing EMG or MUA. The chiropractors have notified the court that they will file an appeal. The TCA Web site, which is seeking donations to help pay for the appeal, claims that the adverse ruling has the potential to wipe out the entire chiropractic profession.

Ms. Jennifer S. Riggs
Mr. Jason Ray
Riggs Aleshire & Ray, P.C.
700 Lavaca Street, Suite 920
Austin, Texas 78701
VIA FAX: (512) 457-9066

Mr. David F. Bragg
Law Offices of David F. Bragg
Southwest Tower
221 East Seventh Street, Suite 920
Austin, Texas 78701
VIA FAX (512) 474-5580

Mr. Jeb Boyt
Assistant Attorney General
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 7870 I
VIA FAX: (512) 320-0167

Ms. Nancy Juren
Assistant Attorney General General
Litigation Division P.O. Box 12548, Capitol Station
Austin, Texas 78701
VIA FAX: (512) 320-0667

Re: Cause No. D-I-GN-06~003451; Texas Medical Association and Texas Medical Board v. Texas Board of Chiropractic Examiners., Glen Parker, Executive Director, and Texas Chiropractic Association; in the 250th Judicial District of Travis County, Texas

Dear Counsel:

This letter is to announce my intended ruling and to explain my reasoning, but it is not to be incorporated into my order and does not limit the possible bases of support for that order.

As you know, the court granted partial summary judgments last November, reserving the challenge to the use of "diagnosis" as it relates to the scope of practice. At that time, I indicated that expert testimony would be pertinent to that question. However, after hearing argument on July 7th of this year, I asked you to file additional or supplemental dispositive motions and responses so that the court could determine whether the remaining issue could be decided as a matter of law without expert testimony. I have now considered those motions and responses. l

lTBC and TCA also filed special exceptions and a motion requesting that the court take judicial notice of the National Practitioner's Data Bank. The special exceptions will be denied. The Court takes judicial notice of the federal statutes and regulations cited, but not of the attached affidavit or report, neither of which is a matter appropriate for judicial notice. Additionally, the court finds nothing relevant in the cited federal law or attachments.

The court's prior ruling determined that the Chiropractic rules may use the terms "diagnosis" because it is not defined by the legislature, its ordinary meaning is synonymous with "analysis" or "evaluation," and the legislature has authorized chiropractors to "analyze, examine, or evaluate.2 That the legislature did not use the word "diagnosis" is no different. in statutory construction, from the fact that it did not use any other synonym. A use of a synonym for a statutory term is by definition consistent with it and a reasonable interpretation of it unless the legislature has forbidden its use. The legislature has shown the ability and willingness, where it deemed it appropriate, to forbid the use of the word "diagnosis." See Tex. Occ. Code § 301.002 (2) (stating that professional nursing "does not include acts of medical diagnosis"). The fact that the Medical Practices Act defines "practicing medicine” to mean the '(diagnosis" of a disease or disorder does not preclude the use of "diagnosis" in the Chiropractic rules because the Medical Practices Act itself states it simply does not apply to "a 'licensed chiropractor engaged strictly in the practice of chiropractic as defined by law." Section: 151.052. In other words, this court may look only to the Chiropractic Act, where the practice of chiropractic is defined, and that act does not forbid the use of the word "diagnosis."3

2Several courts of appeals have also discussed a chiropractor's duty to "'diagnose." Sec e.g. Group v. Vicento, 164 S.W.3d 724 (Tex.App-Houston (14 Oist.],2005, rev. denied April 11, 2008); Thomas v. Farris, 175 S.W.3d 896 (Tex.App.-Texarkana, 2005, rev. denied February 3, 2006); Williams v. Heuser Chiropractic, 2004 WL 100462 (Tex.App.- Tyler, 2004).

3TMA and TMB also assert that the Rule violates article XVI § 31 of the Texas Constitutions, citing a 1944 Texas Court of Criminal Appeals decision addressing a different Chiropractic Act not provided to the court. From the opinion one can determine that the prior act differed from the current act, at least, in that it prohibited a medical doctor from providing services that met the definition of chiropractic without a chiropractic license in addition to the medical license.

In its Second Motion for Partial Summary Judgment, the TMA and TMB provide a medical dictionary definition of "diagnosis" that does not differ in a relevant way from the ordinary definition previously relied upon by the court.' It merely adds yet another synonym—"identification" —which, if anything, is more favorable to TBC and TCA. They argue nonetheless that because this medical dictionary definition of "diagnosis" is the identification of "a disease or condition" the use of the word necessarily authorizes chiropractors to diagnose disease. This is not grammatically or logically correct. If the definition of "drive" is to operate a ear, truck or bus, it does not mean that every use of the word "drive" in the Department of Transportation rules authorizes a person to drive a bus.4

4The TMA and TMB pointed out the similarly flawed reasoning employed by the TBC and TCA in construing the Texas Workers Compensation Act. I at 9-10.

Further, the medical dictionary definition directly refutes TMA and TMB's contention that the mere use of the word "diagnosis" with respect to any health professional other than a medical doctor is precluded by the definition itself, It lists among "kinds of diagnoses" a "nursing diagnosis."' Moreover, TMA and TMB implicitly recognize that an adjectival qualification makes a difference when they write "[i]t is important to recall that the Rule does not say 'preliminary diagnosis' or 'differential diagnosis' or 'chiropractic diagnosis'. . . . " Second Motion for Partial Summary Judgment at 17. (Anyone can render a “judgment" about something, but only a judge can render a "legal judgment")

The court's conclusion that the use of the word "diagnosis” is not prohibited, however, is not the same as saying that the unqualified use of the word is permitted.

The question, as I noted in my letter last November, is "diagnosis" of what and for what purpose?5 TBC and TCA believe the statute's authorization is expansive, that it permits chiropractors to diagnose “diseases that involve or affect the 'condition of the spine and musculoskeletal system,' regardless of etiology." This disregards the word "biomechanical." Even TBC and TCA, however, would have to concede that the Chiropractic Act does not authorize chiropractors to diagnose some diseases and conditions of the human body for any purpose (e.g. schizophrenia) and would have to concede that it authorizes chiropractors to diagnose some diseases and conditions only for a limited purpose (e.g. a spinal tumor, for the purpose of referral not treatment).

5Lest it be considered an oversight that somehow undermines the analysis, the court is aware that the same question could be asked regarding "evaluation" or any other synonym for "diagnosis" in the rules. However, in this case, the rules using those synonymous terms have not been challenged.

The statute authorizes chiropractors to "analyze, examine, or evaluate" and therefore "diagnose" the "biomechanical condition of the spine and musculoskeletal system." The Chiropractic rules define "musculoskeletal system" to include the "associated tissues and nerves." Accepting that expansive definition, which is in a section of the rules TMA and TMB do not challenge, the authorization to diagnose is nonetheless limited to "the biomechanical condition" of the system.

TMA and TMB argue that the Rule must state nothing more than the statute. Administrative agencies authority to issue rules, however, is not so limited, and, if it were, there would be no point to issuing rules at all. The legislature delegates rule-making power to an agency so that, using its expertise, it can provide more detai1.and guidance. The court's role is to assure that the agency's construction of the statute, through its rules, does not contradict the plain meaning of the statute and is reasonable.

Whenever the legislature authorizes any profession to examine and treat any part of the human body in any way; in addition to explicit authorization to diagnose, it is consistent with the overall intent of the statute, which is to protect the public, as well as a reasonable interpretation of the statute, to construe it to contain an implicit and limited authorization. To do no harm, the professional is implicitly authorized to provisionally identify, to the extent possible given the professional's expertise and permissible tools, any disease or condition that would be a contraindication to the professional's authorized treatment for the limited purpose of referring the patient to a professional authorized to confirm or rule out the identification. To warn of possible harm, the professional is implicitly authorized to provisionally identify any other disease or condition apparent in the course of exan1ination for the same limited purpose.

This implicit and limited authorization is not only a reasonable construction of a statute authorizing a profession to treat any part of the human body; it may be required by the standard of care applicable to the profession. See e.g. Williams v. Heuser Chiropractic, 2004 WL 100462 (Tex.App.-Tyler, 2004) (examination and testing before cervical manipulation); Thomas v. Farris, 175 S.W.3d 896 (Tex.App.-Texarkana, 2005, rev. denied February 3, 2006) (manipulation without first x-raying to identify fracture); Group v. Vincento, 164 S.W.3d 724 (Tex.App.-Houston [14 Dist.],2005, rev. denied April 11, 2008) (referral to spine surgeon).

It is not a reasonable interpretation of the statute, however, to construe an implicit and limited authorization to diagnose as an unqualified authorization to diagnose. There is a vast difference between, on the one hand, a chiropractor recognizing what appear to be symptoms of Lou Gehrig's disease, advising the patient of that recognition along with the limitations of the chiropractor's expertise, and referring the patient to a medical doctor for a medical doctor's opinion, and, on the other hand, a chiropractor conducting tests for the purpose of advising a patient that he does or does not have Lou Gehrig’s disease.

I now turn to the Rule in question, Rule 75.17 (d). It begins with the statement that a chiropractor

may render an analysis, diagnosis, or other opinion regarding the findings of examinations and evaluations. Such opinions could include, but are not limited to, the following:

The "but are not limited to" eviscerates any limitation that might otherwise exist in the subparagraphs that follow. Further, subparagraphs (A) and (B) repeat but-not-limited-to language.

Subparagraph (2) (D), which, excludes opinions "that are inconsistent with the practice of chiropractic" and with the opinions "described under this subsection" is a recognition of limitation without any description of it that is not circular. Therefore, the rule authorizes chiropractors to render an analysis, diagnosis, or other opinion regarding findings of the examination and evaluations without any meaningful limitation as to what they may diagnose or for what purpose.

Assuming arguendo that subparagraph (2) (D) saves the Rule from limitlessness, the items listed under subparagraph (1)(A) exceed the statute because they include diagnoses beyond the "biomechanical condition of the spine and musculoskeletal system" and do not limit the implicit authority to diagnose to identification of any contraindications or apparent conditions or diseases for referral to a medical doctor.6

6Subparagraphs (G) and (H) speak to opinions regarding contraindications and referrals but they are among a list of additional opinions authorized by the Rule, not limitations or qualifications applicable to the lists under (A) or (B).

Regarding "subluxation complex," again TMA and TMB do not directly challenge the rule defining the term. Instead they argue that the expansive definition renders invalid subparagraph (1)(B), which authorizes chiropractors to diagnose a subluxation complex.

The definition of "subluxation complex" in the Chiropractic rules and chiropractic definitions includes "the biomechanical and/or neurophysiological reflections." TBC and TCA argue that this expansive definition is consistent with the expansive definition of "musculoskeletal system" in the Board rules. It may be,7 but an authorization to diagnose neurophysiological aspects of the system is not consistent with the explicit authorization to diagnose only the "biomechanica1 condition" of it.

7The court is not called upon to decide.

I will grant TMA and TMB's motion for summary judgment as to the invalidity of Rule 75.17 (d), The court will enter a final judgment.

Please prepare an order and submit it to me for approval within two weeks. If you are not able to agree to the form of the order, please provide me with your competing drafts.


Stephen Yelenosky
Judge, 345th District Court
Travis County, Texas


Original: Hon. Amalia Rodriguez-Mendoza, District Clerk

This page was revised on October 2, 2010.

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