TMA Wins Victory in Legal Battle With Podiatrists
Cover Story – October 2010
Tex Med. 2010;106(10):20-24.
By Crystal Conde
The Texas Medical Association and the Texas Orthopaedic Association (TOA) have prevailed in an eight-year legal battle stemming from podiatrists' definition of the foot. Since 2002, TMA and TOA had been locked in litigation with the Texas State Board of Podiatric Medical Examiners and the Texas Podiatric Medical Association over podiatrists' scope of practice. The case finally concluded in August, when the Texas Supreme Court denied the Texas Podiatric Medical Association's motion for rehearing.
In June, the Supreme Court of Texas declined to review an appellate court's previous decision rejecting the podiatry board's rule that would have allowed podiatrists to treat ankle injuries.
Susan Henricks, JD, an attorney representing TMA and TOA, says the Supreme Court decision is a milestone in the case.
"I think the appellate court's ruling is a landmark decision because it more clearly states that if the legislature defines scope of practice, then only the legislature can change it. At the legislature, all interested parties, including insurance companies, the public, podiatrists, medical doctors, and others, have an opportunity to participate and can have a voice," she said.
David Teuscher, MD, a Beaumont orthopedic surgeon, says the Supreme Court's choice not to review the appellate court's decision is a major boon for physicians.
"This case represents a nearly 10-year odyssey for TMA and TOA," he said. "If the appellate court's ruling becomes the law of the land … that will mean in Texas a regulatory agency can't rewrite the scope of practice for its licensees without first going to the legislature for a change in statute."
TMA maintains that expanding the scope of podiatry requires an amendment to the Podiatry Act, the state law governing the podiatric medical treatment and diagnosis of diseases and disorders of the human foot.
TMA strongly advocates for the safety of patients and believes any individual making a mental or medical diagnosis should be appropriately educated, trained, and licensed to provide such care.
At press time, TMA and TOA were negotiating with the podiatry association to draft scope-of-practice legislation with input from both parties to take to lawmakers next session.
"I'm fully engaged in coming to a solution," said Dr. Teuscher, a member of the TMA Board of Trustees. "The matter needs to be settled at the legislature. Medical doctors need to be engaged in drafting the legislation that gets filed."
Samuel Nava, Jr., DPM, president of the Texas Podiatric Medical Association, says he's disappointed in the Supreme Court's decision. But he emphasizes the association is committed to contributing to proposed legislation on which both sides can agree.
"The Texas Podiatric Medical Association is pursuing continued negotiations with TOA and TMA to develop a bill that will result in the citizens of Texas receiving the best possible foot and ankle care," Dr. Nava said.
Dr. Nava adds that he hopes the agreed-upon legislation will clear up confusion among practitioners, hospital administrators, and patients.
"We're not expanding our scope of practice. We want to codify with legislation what we can and can't do so that everyone understands," he said.
Stephen Brotherton, MD, speaker of the TMA House of Delegates and a Fort Worth orthopedic surgeon, encourages physicians to work with TMA, county medical societies, and their specialty societies to ensure their voices are heard during the next legislative session.
"Physicians need to be unified and involved in organized medicine if they want to protect their patients," he said.
A Lengthy Lawsuit
In 2008, the appeals court said the podiatric board was wrong when it adopted a rule in 2001 that defined the foot as "the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons, ligaments, and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes."
The appeals court judges concluded that the board "exceeded its authority when it promulgated the rule and that the rule is invalid."
TMA and TOA sued the board in 2002, contending that the board's change in definition illegally expanded podiatrists' scope of practice.
Then-Texas Attorney General John Cornyn agreed and issued an opinion that the podiatry board acted outside its authority. He added that only the Texas Legislature has the power to establish or change the scope of practice for podiatrists, physicians, or any other health care professionals. The podiatry association then filed a "friendly suit" against the podiatry board seeking a court ruling favorable to the view that the board could expand the scope of the podiatry license through rulemaking. When TMA learned of the suit, it intervened.
Dr. Teuscher says former Attorney General Cornyn got it right. In an affidavit filed in the case, Dr. Teuscher underscores the limits to podiatric practice.
"The statute regulating podiatry limits the Texas State Board of Podiatric Medical Examiners to testing and qualification of podiatrists on diagnosis and treatment of ailments of the foot only. As an undisputed matter of anatomy, the human foot includes only bones or tissues below but not including the ankle joint," he wrote.
In early 2009, the podiatric medical examiners' board published in the Texas Register a new administrative rule that proposed striking the original definition of the foot and replacing it with an amendment that would potentially expand podiatrists' scope even further. The proposed rule would have allowed podiatrists to perform surgical and nonsurgical procedures on the bones and tissues of the lower leg below the knee cap, including "fractures that extend into the ankle joint."
In a letter to the podiatry board, TMA urged it not to adopt the proposed changes. "These types of injuries are among the most challenging to optimally treat, requiring the utmost skill and experience found among highly trained and experienced board-certified orthopedic surgeons," the letter stated.
Recently, the podiatry board withdrew the rule in light of the litigation and ongoing negotiations to reach some agreement with TMA and TOA on an expanded scope of practice for podiatrists.
Patient Safety at Root of Lawsuit
Dr. Teuscher has been a TMA witness in ensuring podiatrists practice safely within their professional capacity throughout the course of the lawsuit.
"I'm most concerned that some Texas podiatrists haven't been qualified through training or board certification to a level equal to a board-certified orthopedic surgeon to treat the human body at or above the ankle joint," Dr. Teuscher said.
He emphasizes that the "unsuspecting public" could potentially be harmed when health care practitioners with limited training exceed their professional abilities.
A single high standard of care delivered by a well-trained team of professionals supervised by a physician and centered on each patient's needs is a TMA priority. (See "TMA Champions Scope-of-Practice Bill.") Physicians say the legal battle with the podiatry board isn't just a matter of law; it's also a patient health and safety concern.
Dr. Brotherton also has concerns regarding podiatrists' training.
"If you want to be a physician, you need to have a physician's education," he said.
According to Dr. Teuscher, the training programs available to podiatry graduates are inconsistent. For example, the focus of residency programs varies: some concentrate on medical training, some on nonsurgical orthopedic concerns, and some on surgery.
He says the podiatry board should require more rigorous, uniform training of its constituents across the board and should concentrate its efforts on patient safety.
"The podiatry board needs to make sure podiatry is being practiced safely in Texas and that the standard of care is being adhered to," Dr. Teuscher said.
He predicts nonphysician practitioners will continue to attempt to expand their scope of practice.
"We're seeing allied health professionals continually taking a shorter pathway to practicing medicine," he said. "They're pushing the envelope for greater scope, but typically they aren't increasing the vigor of their training programs or certification standards."
TMA Familiar With Scope War
TMA has been blocking attempts by nonphysician health professionals that would allow them to practice medicine without going to medical school. Scope of practice has been one of TMA's hot-button issues for years. Currently, the association also is involved in litigation against the Texas Board of Chiropractic Examiners (TBCE) and the Texas State Board of Examiners of Marriage and Family Therapists.
In 2008, TMA persuaded the state's Licensed Chemical Dependency Counselor (LCDC) Program not to allow counselors to diagnose substance disorders. State law allows only properly trained physicians to make such medical diagnoses, TMA asserted.
The LCDC Program, part of the Professional Licensing and Certification Unit, Division of Regulatory Services of the Texas Department of State Health Services, proposed a rule under "Scope of Practice" that permitted chemical dependency counselors to "diagnose substance disorders, but anything other than a mental health diagnostic impression [was required to] be determined by a qualified professional."
TMA objected because "the proposed rule would expressly permit LCDCs to engage in the practice of medicine by making a medical diagnosis."
TMA's lawsuit against the marriage and family therapists centers on the board's attempt to allow therapists to diagnose medical conditions. TMA went to court after the board adopted rules to that effect in 2008.
TMA says in its lawsuit that "because marriage and family therapists are neither licensed nor trained to practice medicine," giving them the ability to diagnose mental and physical conditions would diminish the quality and standards of the practice of medicine.
The suit is pending in Travis County District Court after TMA asked the court to declare the board's rule invalid and to prohibit the board from enforcing it.
TMA's lawsuit with the TBCE is ongoing. When the board didn't back down in its effort to expand chiropractors' scope of practice, TMA filed suit in 2006.
The medical association asked a Travis County district court to invalidate the chiropractic board's rules that would permit chiropractors to perform clinical needle electromyography (EMG) – a diagnostic procedure – and spinal manipulation under anesthesia (MUA) – a surgical procedure – because both procedures constitute the clinical and legal practice of medicine. Both procedures can cause serious patient injuries if improperly performed by unqualified practitioners, TMA maintains.
In 2007, the Texas Medical Board (TMB) joined as a party in the lawsuit. In May 2009, TBCE adopted a rule to state that MUA was within the scope of practice of a chiropractor.
In November 2009, Austin District Judge Stephen Yelenosky ruled that state law prevents chiropractors from performing EMG or MUA. He granted a TMA and TMB request for a partial summary judgment against TBCE and the Texas Chiropractic Association.
Then in mid-August, the judge said he intends to limit chiropractors' right to diagnose medical conditions. He upheld chiropractors' authority to diagnose conditions that do fall within their scope.
A final ruling was expected in September.
David Bragg, JD, an attorney representing TMA in the case, says allowing chiropractors to diagnose medical conditions has patient safety implications.
"The scope-of-practice rule the chiropractic board developed authorizes chiropractors in Texas to diagnose a whole host of medical conditions that they, by their own admission, can't treat. The rule is so broad chiropractors can diagnose cancers, muscular dystrophy, and even Lou Gehrig's disease. We [TMA] don't think chiropractors have any business doing this," Mr. Bragg said.
Dr. Teuscher stresses the Texas Chiropractic Act limits chiropractors to an examination, evaluation, or analysis of the biomechanical condition of the spine and the musculoskeletal system. He gave a deposition in the case on behalf of TMA in July.
"I think Judge Yelenosky got it right. If you're going to stick needles in people's muscles, you need to be a medical doctor who specializes in those types of procedures and who has the appropriate training and board certification," Dr. Teuscher said.
Mr. Bragg says some allied health professionals will continue to work to expand their scope of practice.
"It has required a fair level of vigilance to make sure health professionals are restricted to what the legislature has outlined they can and can't do. I think organizations like TMA will need to continue to be aware of these efforts," he said.
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at Crystal Conde.
TMA Champions Scope-of-Practice Bill
During the 2009 legislative session, TMA backed Senate Bill 532, which ensures physicians maintain supervision and accountability of physician assistants and/or advanced practice nurses in retail health clinics. Authored by Sen. Dan Patrick (R-Houston) and sponsored in the House by Rep. Garnet Coleman (D-Houston), the bill took effect last September.
SB 532 increases from three to four the maximum number of physician assistants, advanced practice nurses, or nurse midwives to whom certain duties may be delegated by a physician at a primary practice site, alternate practice site, or facility-based practice site. SB 532 also ensures the Texas Medical Board has proper oversight of physicians' delegation of prescriptive authority and other responsibilities to allied health practitioners at retail health clinics.
For more information about TMA's scope-of-practice advocacy and to access resources, visit the TMA website.
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