State Supreme Court Sides With Chiropractors on Neurological Test
By Joey Berlin

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The Texas Supreme Court has ruled that chiropractors can perform a diagnostic test used to evaluate a patient’s eye movements, a setback for medicine in a 10-year court battle.

The high court on Friday decided in favor of the Texas Board of Chiropractic Examiners (TBCE) on board rules that give chiropractors authority to perform vestibular-ocular-nystagmus testing (VONT). The Texas Medical Association had sued TBCE in January 2011 over those rules, arguing over the past decade that the rules unlawfully gave chiropractors the authority to perform VONT.

TMA asserted the two tests that fall under the VONT designation are the practice of medicine and are “unrelated to the biomechanical condition of the musculoskeletal system or the spine,” leaving them outside chiropractors’ area of expertise. TBCE rules defining “musculoskeletal system” and “subluxation complex” also were part of the court challenge.

Both a district court and an appeals court had previously sided with TMA. But the Supreme Court reversed those decisions, declaring by a 7-2 vote that the TBCE rules were valid.

“TMA argues that no commonly accepted definition of the musculoskeletal system includes nerves,” Chief Justice Nathan Hecht wrote in the majority decision. “But TMA over reads [the disputed rule]. The rule merely recognizes the reality that musculoskeletal dysfunctions cannot be diagnosed or treated without considering associated nerves. Medical neurology is a far broader field.”

Chief Justice Hecht noted that TMA had “presented evidence in the trial court that VONT is a neurological test that a medical doctor may use to diagnose a problem of the brain, inner ear, or eyes, none of which is a part of the spine or musculoskeletal system.”

But he said the chiropractic board had presented evidence that the tests can be used “to facilitate chiropractic treatment” and to “rule out nonchiropractic causes of certain disorders.” TBCE had used an example that the test could be used to see whether cervical vertigo was the cause of a chiropractic patient’s dizziness, Justice Hecht noted.

“The Board argues that chiropractors must consider the nerves involved in a musculoskeletal system in order to determine whether referral to a neurologist is required. TMA characterizes this view as functional and argues that it ignores the fact that body systems are separate,” the chief justice wrote. “But it is not for the judiciary to decide between these competing views. That decision was the Board’s, and it could reasonably consider neural involvement in the musculoskeletal system in defining the scope of chiropractic.”

In a dissenting opinion that agreed with the thrust of TMA’s arguments, Justice Jane Bland wrote that the “scope of practice for chiropractors is straightforward: chiropractors ‘diagnose, analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body.’ This limited scope does not permit chiropractors to conduct neurological testing or to make diagnoses that do not involve the ‘biomechanical condition of the spine and musculoskeletal system.’”

She wrote that any diagnosis a chiropractor makes must be within the scope of chiropractic, and ruling out a neurological condition “based on a neurological examination is to say, affirmatively, that it is not a cause of the patient’s symptoms.”

Justice Bland noted the Supreme Court had rejected the argument that TBCE rules “permit chiropractors to treat ‘virtually any disease and disorder in the whole body, … including … neurological diseases and disorders,” and said by doing so, the court had emphasized the Texas Legislature’s limits on chiropractic practice.

But the court had “abandon[ed] this limiting principle,” she said, by holding that TBCE can authorize chiropractors “to conduct neurological examinations” through VONT.

“Whether some chiropractors are ‘trained’ to perform vestibular-ocular-nystagmus testing does not answer whether they are qualified to interpret those results and diagnose a neurological condition that is unrelated to the spine or musculoskeletal system based on those results,” Justice Bland added. “It also does not answer whether the Board’s rule goes beyond what the [Texas] Legislature has permitted. It does.”

Following the decision, TMA is considering its options on how to proceed.

Last Updated On

February 02, 2021

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Joey Berlin

Associate Editor

(512) 370-1393
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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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