Court Sides With TMA in Suit Over Chiropractors Performing Diagnostic Test
Law Feature — January 2017
Tex Med. 2017;113(1):33-39.
By Joey Berlin
Austin otolaryngologist James Kemper, MD, says the place for an electronystagmography (ENG) or videonystagmography (VNG) test is in a physician's office. Not only is ENG or VNG testing the practice of medicine, he says, but also a physician needs to be around in case the patient hits the floor.
For an ENG or VNG test, an audiologist in a physician's office typically tests a patient's eye movements while watching a pattern of lights, using either electrodes or, more commonly these days, video goggles. The eye movements determine whether the patient has any abnormalities in the central nervous system affecting the brain or in the peripheral nervous system, which involves the inner ear.
The last part of the test, Dr. Kemper says, involves bithermal caloric testing, in which the audiologist uses a machine called a caloric irrigator to squirt either air or water into each ear. That part of the test, Dr. Kemper says, will periodically make patients extremely sick to the point of vomiting.
"Any audiologist performing that test has a trash can available while they're doing it," Dr. Kemper said. "Rarely, but not unheard of at all — I've had it happen a few times — patients become so ill that they faint, or they become vasovagal, which is another reason why I strongly recommend that it be done in a physician's office. I've had patients I've had to give Phenergan shots or patients that I've had to send home on medications because they didn't recover for quite a while after that test. That's probably not more than 3 to 5 percent of the tests that you're going to do. But for that 3 to 5 percent, it's pretty miserable."
Despite the medical judgment needed to evaluate an ENG or VNG test, and the risks involved, the test emerged at the center of a battle between the Texas Medical Association and the state's chiropractic board. In October, TMA triumphed when a Travis County district court sided with medicine in a lawsuit against the Texas Board of Chiropractic Examiners (TBCE) over TBCE granting chiropractors authority to perform the tests, which TBCE collectively referred to as "technological vestibular-ocular-nystagmus testing" (VONT).
The suit had dragged on for more than five years before the district court judge invalidated the rule allowing chiropractors to perform VONT. The court also voided the board's use of the word "diagnosis" in its scope-of-practice rule, as well as the board's definitions of the terms "musculoskeletal system" and "subluxation complex." An appeal is pending from TBCE.
VONT: Medicine's Domain
The vestibular ocular system is a neurological system located in the brainstem that maintains "fixation of the eyes on a target when the head is moving," TMA noted in a court filing, such as if a person focuses on a computer screen while the person's head moves up and down or side to side. VNG testing measures eye movements using infrared cameras, while ENG measures muscles around the eyes using electrodes.
VONT can reveal "anything from an ear infection to a brain tumor," said David Bragg, an attorney who represented TMA in the lawsuit. "Any number of things can cause this kind of irregular movement." Physicians also use the results of VONT to detect such abnormalities as tumors or Meniere's disease, an inner-ear disorder that causes vertigo and progressive hearing loss.
After withdrawing one proposed rule authorizing chiropractors to perform VONT in 2010, TBCE published a revised version, adopting it effective in October 2010. The rule allows a licensee to perform VONT if that licensee has "a diplomate in chiropractic neurology" and has completed 150 hours of training, including a written and performance examination.
TMA filed suit in January 2011. The association argued the rules:
- Unlawfully authorized chiropractors to diagnose diseases;
- Improperly defined the musculoskeletal system to include "nerves";
- Unlawfully gave licensed chiropractors authority to perform VONT, which is "unrelated to the biomechanical condition of the musculoskeletal system or the spine"; and
- Defined "subluxation complex" as a "neuromusculoskeletal condition," which authorized diagnosis and treatment of neurological conditions, exceeding chiropractors' authority by law.
In court filings, TMA argued the chiropractic section of state law limits chiropractors to analyzing, examining, or evaluating the "biomechanical condition of the spine and musculoskeletal system of the human body," or performing "nonsurgical, nonincisive procedures … to improve the subluxation complex or the biomechanics of the musculoskeletal system." It doesn't allow chiropractors to "diagnose" conditions, TMA argued, and even if the chiropractors could use that term, "the diagnosis provisions still exceeded the scope of chiropractic" because they were allowing chiropractors to diagnose beyond the biomechanical condition of the spine and musculoskeletal system.
"TBCE concedes that the brain, the eyes, and the inner ears are not part of the spine or the musculoskeletal system," TMA wrote. "Clearly, there is no language in the Chiropractic Act which authorizes a chiropractor to 'analyze, examine or evaluate' these parts of the human body. Further, TBCE concedes that no disorder of the spine or musculoskeletal system causes any vestibular system pathology. Instead of involving either the spine or musculoskeletal system, vestibular-ocular-nystagmus testing is used to diagnose problems of the brain, inner ears, or eyes which may cause, among other things, dizziness, imbalance, or vertigo."
TMA added it wasn't surprising chiropractors wanted to expand their scope of practice "into the fertile area of dizziness, imbalance, and vertigo" because imbalance and dizziness are the second most-cited health care complaint after headaches. The type of dizziness or vertigo that would prompt vestibular testing often requires treatment with medications only a physician can prescribe, TMA wrote.
"As noted, dizziness, vertigo, and imbalance are very common conditions that cause patients to seek medical attention. It is imperative that a correct medical diagnosis be made rapidly because these symptoms can be caused by something as benign as a viral infection of the inner ear, or something as ominous as a bacterial infection of the inner ear, a brain tumor, or an impending brainstem stroke."
Retired orthopedic surgeon C. Bruce Malone, MD, testified for TMA on behalf of the association's legal standing to bring the suit because of the interest in preserving physicians' rights under the Medical Practice Act. Dr. Malone says VONT is in the realm of practicing medicine and is so sophisticated that, as a physician who is not an ear, nose, and throat specialist, "even I wouldn't try to do it."
"I have an MD degree. I certainly have the ability to go train to do that and to work with the interpretations and all that, but I don't have the skill," he said. "I certainly don't think that a person without my training can suddenly acquire the skill."
There's a clear delineation between analysis/evaluation and diagnosis, Dr. Malone said.
"I understand totally the feeling among the general public that, 'Oh well, anyone can diagnose,'" Dr. Malone said. "[They say] 'Aunt Tilly can diagnose; your aunt can tell you, well, I think you have a so-and-so.'" That may be, but she doesn't have any training to do that, and we all have people who make a diagnosis because they're familiar with it. But the fact is, we are uniquely educated and trained to do that."
Chiropractors Say Diagnosing Necessary
TBCE called TMA's challenge to the diagnosis rule a "thinly veiled attack on the entire practice of chiropractic" in its closing argument. The board said chiropractors can't function without diagnosis, citing expert testimony that "the statutory term 'evaluation' must equate to diagnosis for the practice of chiropractic to survive."
Chiropractors diagnosing outside of the chiropractic realm is necessary, TBCE argued, to determine "if chiropractic treatment is contra-indicated and is also necessary when a chiropractic exam reveals something that requires medical attention from another provider."
According to expert testimony TBCE cited, chiropractors who discover lesions or tumors, for example "must diagnose it to [the] best of his/her ability. This does not represent a definitive final diagnosis, just a working diagnosis or a differential diagnosis to get the ball rolling."
With regard specifically to VONT, TBCE argued "testing is not treatment" and that VONT for differential diagnosis is not practicing medicine. Dizziness is not always vestibular, TBCE said, citing testimony that musculoskeletal conditions such as cervical vertigo can cause it.
"The weight of the evidence shows that [VONT] tests may be helpful in diagnosing cervical vertigo, a condition causing dizziness that is treatable by a chiropractor," TBCE wrote. "It is clear that a chiropractor may order [VONT] testing and incorporate the results into a working diagnosis, just as a physical therapist does. The weight of the evidence also shows that a chiropractor may perform ENG and VNG tests, just as an audiologist does."
Courtney Ebeier, general counsel for TBCE, told Texas Medicine the process of evaluating and diagnosing a patient doesn't equate to treating a medical condition discovered in that process.
"A chiropractor may employ a wide array of tests, including VONT, in the patient evaluation and diagnostic process," Ms. Ebeier said. "Once proper patient evaluation and diagnostic testing is conducted, the results of that process may lead to a chiropractic treatment plan for the patient, or the results of that process may serve as a basis for referral to another medical provider for treatment. Public health is best served when chiropractors are permitted to perform necessary patient evaluation and diagnostic testing to determine whether a chiropractor may render treatment, or whether a referral to another qualified provider is necessary. This is particularly important because doctors of chiropractic are point-of-entry providers for the general public."
Mr. Bragg says TBCE's argument has been that any number of things can affect the spine and musculoskeletal system, "and by that they mean [for instance] there are things that can cause you to have an irregular gait. There are things that can cause you to have restrictions on movement, range of motion, so therefore if it can cause these problems with the biomechanics of the spine and musculoskeletal system, chiropractors are entitled to look at it. Our response has been, 'A heart attack can cause people to not be able to walk; does that mean that chiropractors therefore become cardiologists and are equipped to diagnose those kinds of conditions?' Yes, if you can recognize a symptom, hopefully you'll have the good sense to send them to a qualified specialist to deal with that symptom. But when chiropractors make themselves the gatekeeper to determine who should be referred and to whom they should be referred, of necessity, the chiropractor is determining whether the condition is one that requires specialist treatment or not. And that's diagnosis."
Dr. Kemper says he rejects the idea that chiropractors need to perform VONT to rule out vestibular problems.
"That's just simply not a very valid way to do that," he said. "It's just sort of flawed logic to say, 'Well, I'm going to do a test just to make sure they don't have something.' When, in reality, once you do that test, you have to know how to interpret it well and be able to consider the other ancillary tests, like MRI scans and other things that need to be considered."
The Texas Chiropractic Association (TCA), which joined the lawsuit as an intervenor, supported TBCE's case. TCA said in its closing argument that chiropractors' use of VONT is valid because "chiropractors are not constrained to diagnose only conditions they can treat," and an instrumented VONT exam "serves the same purpose as many other diagnostic tools."
Dr. Kemper says the most important element of the case is realizing a test is not "just something to add on to the patient's chart, but it serves to guide the treatment or to misguide the treatment. If it's going to do that, you want to be able to have access and knowledge about all those different treatments and all those different disorders that can occur. I know that those aren't provided in a chiropractor's office."
The half-decade court battle over VONT closed its most recent chapter when District Court Judge Rhonda Hurley decided in TMA's favor on Oct. 19. The district court's Findings of Fact and Conclusions of Law, which Judge Hurley signed in November, listed among its points:
- In its rulemaking, TBCE intended the term "diagnosis" to go beyond analyzing, examining, and evaluating the biomechanical condition of the spine and musculoskeletal system, and extend into diagnosis of neurological diseases and disorders.
- No commonly accepted definition of the musculoskeletal system includes nerves, and nerves are part of neither the muscle system nor the skeletal system.
- Authorizing chiropractors to perform VONT exceeds the scope of chiropractic, and the authority TBCE granted to do so is void.
At its quarterly meeting on Nov. 17, TBCE voted to appeal the district court ruling, Ms. Ebeier says. The Third Court of Appeals would hear the case.
Chiropractors are apparently taking their argument to the Texas Legislature as well.
In an October letter commenting on the Sunset Advisory Commission's review of TBCE, TCA recommended defining and including "the authority of a licensed Doctor of Chiropractic to make a diagnosis" within state law. TCA also recommended allowing chiropractors to advertise specializations, such as chiropractic neurology, and defining and including in state chiropractic law the term "chiropractic physician," a term TCA says 32 U.S. states use.
TMA General Counsel Rocky Wilcox says interpretations of the Texas Constitution have held that someone seeking to practice medicine "must qualify to do so by taking the same examination required of all others licensed to practice medicine. Thus, constitutional issues come into play when the Texas Legislature is asked to expand the scope of lawful practice of health care practitioners to equal those licensed to practice medicine without requiring that they also meet the same licensing requirements."
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.
Another Diagnosis Fight
TMA is fighting to prevent unlawful expansion of scope of practice in another case that was before the Texas Supreme Court at press time.
After the Texas State Board of Examiners of Marriage and Family Therapists (TSBEMFT) proposed and adopted a rule allowing marriage and family therapists (MFTs) to diagnose illnesses, TMA filed suit challenging the rules in January 2009. In 2013, District Court Judge Stephen Yelenosky signed a judgment invalidating a rule allowing MFTs to make a diagnostic assessment of disorders in the Diagnostic and Statistical Manual of Mental Disorders. But Judge Yelenosky also decided a rule provision stating MFTs "shall base all services on an assessment, evaluation or diagnosis of the client" did not exceed MFTs' scope of practice. An appellate court later ruled in TMA's favor on that language as well, saying licensed MFTs could not diagnose mental diseases or disorders. The battle has continued and now sits with the state supreme court, which heard oral arguments on Oct. 11, 2016.
TMA President Don R. Read, MD, wrote in an opinion piece for the Dallas Morning News in November that diagnosing mental illness "requires the expertise and training of a physician." Dr. Read argued the case is about money, saying health insurance companies "don't want to pay for these therapists' service without a diagnosis on the claim form."
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