Recent decades have seen a struggle between physicians—medical doctors and doctors of osteopathic—and providers and other specialties.
As many physicians and their professional associations see it: podiatrists invade the territory of orthopedic surgeons; certified registered nurse anesthetists (CRNAs) trespass on grounds owned by anesthesiologists; optometrists encroach on areas reserved for ophthalmologists. and chiropractors expand their practice in the areas covered by physicians of all numerous specialties. Meanwhile, nurse practitioners and physician assistants are lobbying for expanded rights to practice without physician supervision.
In large part, the medical associations have lost those battles. This is interesting, given the power and influence of medical associations. I believe the answer to why doctors seem to repeatedly come up on the short end of things lies in the fact that even more powerful interests—hospital associations and insurance companies—favor blurring the lines among different healthcare professions because non-physicians are less expensive.
Adding to the debate, professional organizations for non-physician healthcare providers argue that their patient care is just as good and just as safe as what doctors provide.
The latest chapter in the saga is found in a January 29, 2021 opinion by the Texas Supreme Court, styled Texas Board of Chiropractic Examiners v. Texas Medical Association, No. 18-1223. You can read the opinion here.
Factually, this dispute came about when the Texas Medical Association—the professional association for physicians—didn’t like a new rule entered by the Texas Board of Chiropractic Examiners (“Board”). Under Texas law, the Board has rule-making authority to regulate the practice of license chiropractors in the state.
Chiropractors have traditionally focused their practice on vertebral misalignment, which is called subluxation. The Texas Occupations Code defines chiropractic care as employing objective or subjective means for the purpose of ascertaining the alignment of the vertebrae of the spine and using adjustment, manipulation, or other procedures to improve subluxation or the biomechanics of the musculoskeletal system.
Under Texas law, chiropractors are excluded from prescribing drugs and using x-rays or other therapies that exposed the body to radiation, but the Board is a lovely way to enact rules that clarify what activities are included within the scope of chiropractic practice.
At issue is Board Rule 78.1, which allows chiropractors (with special training and who pass an exam) to perform an eye-movement test for neurological problems using cameras or electrodes to detect an abnormal side-to-side eye movement. The test is called vestibular-ocular-nystagmus testing and is known by the acronym VONT. The test is a diagnostic tool to help identify the cause of balance problems. When there’s a neurological cause, it requires referral to a medical doctor.
Plus, Texas Medical Association felt that the Board’s definition of “musculoskeletal system” was too expansive because it includes not only bones, joints, muscles, tendons, and ligaments but also the “associated . . . nerves that move the body and maintain its form.” The Board’s rule also generated Board ire by its definition of “subluxation complex” as including a neuromuscular condition that can alter certain “neuro-physiological reflections.”
In short, it got on the physician association’s nerves that the Board was allowing licensed chiropractors to get involved with nerves.
The court looked at the Texas Medical Association’s argument unfavorably, repeating a statement from a recent opinion that, “every act that a physician may do is not automatically the unlawful practice of medicine when done by a non-physician, and terminology in one field may overlap with that of another.” The court made that finding in the case styled Texas State Board of Examiners of Marriage & Family Therapists v. Texas Medical Association, 511 S.W.3d 28 (Tex. 2017).
The dispositive factor for the court was that healthcare providers need to be able to rule out other potential causes in order to make a proper diagnosis. This is called the differential diagnosis rule. This is important for chiropractors because virtually any problem that they treat could have a non-chiropractic source. Thus, it’s important to determine the proper diagnosis and cause to decide whether the patient would benefit from chiropractic treatment or needs referral to a medical doctor.
The Texas Supreme Court rejected the Texas Medical Board’s complaint, finding that the scope of practice for chiropractors is a policy question for the legislature and boards, not a matter for the court to decide.
If you’ve been seriously injured because of physician, medical, or chiropractic care in Texas, the contact a top-rated, experienced Houston, Texas medical malpractice lawyer for advice concerning your potential case.
