The Eight Years’ War: Court Sides With TMA in Long-Running Chiropractic Case on Vestibular Testing
By Joey Berlin Texas Medicine February 2019


Nearly a decade into a scope-of-practice battle, the Texas Medical Association has proven that when it comes to keeping other professions out of the practice of medicine, TMA is in it for the long haul.

In a split victory, TMA once again prevailed in November 2018 when the Third Court of Appeals upheld a trial court’s decision that chiropractors don’t have the authority to perform vestibular-ocular-nystagmus testing (VONT). However, a recent change to state law caused the appeals court to find in the Texas Board of Chiropractic Examiners’ (TBCE’s) favor on the use of the word “diagnosis” in the board’s administrative rules — meaning chiropractors can diagnose, but only within their scope of practice.

The appeals court’s decision on VONT came as welcome news to Austin otolaryngologist James Kemper, MD, who testified as part of TMA’s lawsuit against the TBCE — a case that began back in 2011.

VONT collectively refers to electronystagmography (ENG) or videonystagmography (VNG) tests, which evaluate a patient’s eye movements. Physicians use the tests to diagnose abnormalities of the vestibular system. An ENG test involves electrodes placed around the eyes, while a VNG test uses video goggles.

Audiologists or trained subspecialists perform the tests in a physician’s office, but doctors are the ones who evaluate the results. They also must be around during the test in case VONT makes a patient extremely ill — which Dr. Kemper says is not uncommon.

“I’ll put it this way: Every time vestibular testing is done, there is a barf bag nearby … because it can happen to anybody,” he said. “What I was most impressed with during the court process was, it was a great presentation of physiology and science versus a lot of definitions that were written on whiteboards that basically were created within the school of [chiropractic]. To me, it was a triumph of the practice of medicine, the science of medicine, the protection of patients through known objective science.”

TMA’s concern with the use of the word “diagnosis” in a nonmedical context “really depends on the chiropractic board and how vigorously they want to work to make sure that their licensees stay within their legitimate scope of practice,” said David Bragg, an attorney representing TMA in the case. “We’ve had difficulty with the board attempting to authorize various things that go beyond [that scope] — needle electromyography, among others. As long as the board insists that their licensees stay within their legislatively authorized scope of practice, there’s not a problem.”

Diagnosis: Chiros have limited ability

TBCE Executive Director Patrick Fortner wouldn’t comment to Texas Medicine on why chiropractors are so determined to obtain authority to perform VONT. But in court documents, TMA has noted the testing involves the “fertile area of dizziness, imbalance, and vertigo,” collectively one of the most common health care complaints primary care physicians see.

TBCE originally adopted a rule authorizing chiropractors to perform VONT in October 2010. TMA filed suit in early 2011, alleging the rules exceeded chiropractors’ lawful scope of practice. TMA also later argued TBCE unlawfully authorized chiropractors to diagnose diseases; improperly defined the musculoskeletal system to include “nerves”; and defined “subluxation complex” as a “neuromusculoskeletal condition,” which would have illegally authorized chiropractors to diagnose and treat neurological conditions.

TBCE argued in court filings that chiropractors couldn’t function without diagnosis, and that they needed to diagnose outside the chiropractic realm, for example to determine if a chiropractic exam revealed something requiring medical attention. The chiropractic board argued VONT did not constitute treatment and could be used to differentiate conditions. For example, cervical vertigo, a musculoskeletal condition within chiropractors’ treatment realm, can cause dizziness, TBCE argued.

In 2016, a district court invalidated TBCE’s rule on VONT and sided with TMA on the other rule provisions. (See “Standing Up For Scope,” January 2017 Texas Medicine, pages 33-39,

The appeals court, in its November decision, wrote that although vestibular diseases could impact the musculoskeletal system, disorders in the scope of chiropractic don’t cause vestibular conditions. Judges said the “scope of chiropractic practice is limited under Texas law,” and agreed with TMA and the trial court on the “nerves” issue.

Since TMA originally filed suit, however, something important changed that shaped the appeals court’s decision on the word “diagnosis.” In 2017, an amendment to state law added the word “diagnose” to the list of actions a chiropractor can lawfully perform. So, the appeals court decided in November, the TBCE rules’ use of the word “diagnosis” didn’t exceed chiropractors’ authority.

“We have always looked at ‘diagnosis’ as the diagnosis of diseases, rather than diagnosing what’s wrong with your car,” Mr. Bragg said. “The courts, including the (Texas) Supreme Court, have taken the position that the word diagnosis can have many meanings. In this particular case, the Court of Appeals held that [as chiropractors], ‘yes, you can diagnose. But it can only be a diagnosis of the musculoskeletal system and the spine. You can’t venture beyond that.’”

Eight years — and counting?

The decision on VONT came as welcome news to the Texas Association of Otolaryngology (TAO), including its immediate past president, Waco otolaryngologist Bradford Holland, MD.

“This is a battle that’s gone back to 2011 … and one which we think is completely out of [chiropractors’] wheelhouse,” Dr. Holland said.

He added that vestibular-ocular reflex disorders “are some of the most complex nervous-system disorders known to medicine. And frankly, even most MDs, most otolaryngologists, leave the diagnosis and management to subspecialists. So there’s little hope that the average chiropractic practitioner can properly evaluate and treat these conditions, which are certainly outside the realm of their musculoskeletal field.”

At press time, TBCE and the Texas Chiropractic Association (TCA) had asked the appeals court to reconsider the case. TCA, which joined the lawsuit after it began, seems determined to keep the case alive, according to a statement on its website. TCA referred Texas Medicine to the statement, which says:

“If necessary, TCA will appeal this ruling to the Texas Supreme Court. We will do whatever is required to prevent this decision from taking effect before the Texas Supreme Court has a chance to consider our appeal.” In a separate message posted to the website, TCA President Devin Pettiet called the decision “a setback that TCA simply won’t accept.”

After the court’s decision, Mr. Fortner, TCBE executive director, told Texas Medicine the chiropractic board was “reviewing our options with the attorney general, and it’d be inappropriate to say anything beyond that.”

Tex Med. 2019;115(2):32-33
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Last Updated On

February 04, 2019

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Joey Berlin

Associate Editor

(512) 370-1393

Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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