Acupuncture Soc. of Kansas v. Kansas State Bd. of Healing Arts

• Decision Date: 01 December 1979
• Docket Number: No. 49999,49999
• Citation: 602 P.2d 1311,226 Kan. 639
• Parties: ACUPUNCTURE SOCIETY OF KANSAS et al., Appellants, v. KANSAS STATE BOARD OF HEALING ARTS et al., Appellees.
• Court: Kansas Supreme Court

Page 1311

602 P.2d 1311

226 Kan. 639

ACUPUNCTURE SOCIETY OF KANSAS et al., Appellants, v. KANSAS STATE BOARD OF HEALING ARTS et al., Appellees.

No. 49999.

Supreme Court of Kansas.

Dec. 1, 1979.

Syllabus by the Court

1. Only the state, through the legislature, has the authority to enact statutes fixing reasonable and proper qualifications for those engaged in the healing of the sick or afflicted, and to place limitations on their practice of the healing arts.

2. The construction of statutes dealing with the healing arts is a function of the judiciary.

3. The simple piercing of the skin by the insertion of a solid wire or needle, not intended to separate or sever tissue, for the purpose of treating by acupuncture, is not "surgery" as that term is used in the Healing Arts Act.

4. The use of acupuncture is not prohibited in the practice of chiropractic by K.S.A. 1978 Supp. 65-2871 or any other provision of the Healing Arts Act.

5. Sufficient actual controversy existed in the case to provide a basis for declaratory judgment action.

Ralph E. Skoog, Topeka, argued the cause, and Thomas J. Lyons, of Petersen, Lyons, Tews & Squires, St. Paul, Minn., was with him on brief, for appellants.

Janet A. Chubb, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., Philip A. Harley, Asst. Atty. Gen. and Mark G. Ayesh, legal asst. were with her on brief, for appellees.

PRAGER, Justice:

This is an appeal from a ruling in a declaratory judgment action prohibiting chiropractors from using acupuncture in treating their patients because it constituted surgery, which is a prohibited practice for chiropractors.

The factual situation leading to the filing of the action may be informative. Such facts as stated in the trial court's memorandum may be stated in substance.

The case was filed June 16, 1975. The nature and the problems presented underwent considerable change since its onset. Initially the case was filed in Sedgwick County. Subsequently the venue was transferred to Shawnee County. At that time the controversy stemmed from the fact that the 1974 Kansas Legislature had authorized the State Board of Healing Arts to make a study of the subject and practice of acupuncture. The state board was empowered to authorize qualified persons to practice acupuncture for experimental purposes and exempted such persons from criminal or civil prosecution on licensing grounds. In accordance with such grant of authority, the state board did set up educational requirements for and authorization for the experimental practice of acupuncture. Upon meeting the requirements, certain medical doctors and chiropractors became eligible. Reports on such acupuncture practice were required to be sent to the state board. All proceeded uneventfully until the state board set December 1, 1975, as the end of the experimental study and practice. This date was set in order to afford time for the analysis of the study and preparation of a report by the state board to the 1976 legislature. The plaintiffs at the time of filing and now (although the names change from time to time) were and are licensed Kansas chiropractors. The plaintiffs, in late 1975, were primarily concerned with the interruption of their acupuncture practice between December 1, 1975, and the time the 1976 legislature took action on the report. In other words, it was anticipated that the 1976 legislature would take some action on acupuncture. If the plaintiffs were satisfied with that action, the case would be resolved. If the plaintiffs were not satisfied with the legislative action, then a challenge would be made, but it would be over the new enactment. By agreement the status quo was preserved between December 1, 1975, and the legislative session. During the 1976 legislative session, the report was received and hearings were held. However, no laws were enacted. Due to counsel changes and other causes, little occurred in the case in 1976. Ultimately, the case underwent a metamorphosis into a full-blown declaratory judgment action seeking a declaration that no special legislation was needed to permit chiropractors to practice acupuncture as it was not surgery and was already a permissible form of chiropractic procedure. In its new form the case went to trial.

After an extensive trial, the judge issued a memorandum dated August 18, 1977, which contained findings of fact and conclusions of law. Only two of the findings were objected to by the plaintiffs. In the interest of brevity, we will summarize the findings other than the two against which objections were lodged:

Acupuncture is a modality of treatment which is a healing art and falls within the purview of the Board of Healing Arts (by agreement of parties). It is a name ascribed to a variety of treatment procedures which are basically Chinese in origin. Some forms of acupuncture do not involve the insertion of a nonhollow wire through the skin but for the purpose of this case, acupuncture is considered to involve the use of such nonhollow wires or needles as this is the dominant form and the form plaintiffs are seeking to be permitted to utilize in their practice.

The insertion of the wires or needles through the skin is considered by defendant attorney general to be the practice of surgery. It is a form of ancient Chinese folk medicine. Prior to the Communist takeover of China, acupuncture was practiced by so-called "barefoot doctors" and was totally separate from and not a part of the training and practice of graduates of Chinese medical schools.

In the twenty plus years between the taking of power by the Chinese Communists and the thawing of relations between the United States and China during the Nixon administration, acupuncture gained "respectability" in the Chinese medical community and a degree of amalgamation occurred. When Western eyes were permitted into China during the Nixon years, acupuncture received world wide attention for the first time. The great interest of the Western World in acupuncture is basically a phenomenon of the 1970's.

Acupuncture is a useful modality of treatment for a variety of health disorders and in anesthesia. The reason why acupuncture works and its underlying theory have never been explained to the satisfaction of the scientific community.

The origin of acupuncture lies in antiquity and until the last few years it was solely a folk art of the Far East handed down from father to son, so to speak, as opposed to being acquired from traditional formal educational institutions. The theory of chiropractic developed along separate lines and is of a very recent vintage by comparison. Acupuncture methods and theories were taught in chiropractic colleges for the first time in the 1970's. Such courses are not taught in all chiropractic colleges and are taken on an elective rather than on a required basis.

Some risk of infection and injury is incurred by a patient receiving acupuncture and the same should be administered only by trained persons (by agreement of the parties and testimony). Requirements as to training must exist before a person can practice acupuncture for the safety and protection of the public (by agreement of the parties and testimony). Acupuncture has caught the public fancy and great interest in it exists. It is a rapidly expanding field.

Chiropractors in Kansas are expressly permitted to draw blood for diagnostic purposes. "Surgery" is a broad term employed to cover the work surgeons do. "Surgery" covers procedures in which no incision or entering of the skin is involved; for example, a closed reduction of a fracture. The traditional chiropractic theory involves external manipulation, applying heat to the exterior, etc. The only piercing of the skin permitted is the drawing of blood for diagnostic purposes.

The factual statements just recited are not disputed by the parties. The plaintiffs object only to findings of fact 18 and 22 which are as follows:

"18. Acupuncture is a separate and distinct modality of treatment and is not a part of any other modality of treatment."

"22. Acupuncture, being neither 'fish nor fowl' is a separate modality of treatment and is not a natural part of any other modality of treatment."

Following the above listed findings of fact the court made conclusions of law which we quote:

"1. Acupuncture is a separate modality of treatment within the purview of the Board of Healing Arts;

"2. Acupuncture is not inherently a part of chiropractic theory;

"3. The traditional definitions of surgery arose before the interest in acupuncture occurred;

"4. Acupuncture involves the piercing of skin for treatment, not diagnostic purposes, and comes within the term 'surgery' as it is now defined and commonly understood;

"5. If chiropractors are to be permitted to practice acupuncture in Kansas, this authorization must come from legislation rather than by judicial decree;

"6. The legislature is equipped to hold public hearings and determine if chiropractors should be expressly permitted to practice acupuncture and, if so, to direct the Board of Healing Arts to prepare appropriate regulations concerning same;

"7. K.S.A. 65-2871 (1976 Supp.) does not permit chiropractors to practice acupuncture."

Subsequently the above conclusions of law and findings were made the order of the court, the court's memorandum of decision was filed August 19, 1977, and the journal entry was filed March 27, 1978.

The legislature in 1976 enacted a very complete and comprehensive revised Healing Arts Act. K.S.A. 1978 Supp. 65-2871 reads:

"For the purpose of this act the following persons shall be deemed to be engaged in the practice of chiropractic: (A ) Persons who examine, analyze and diagnose the human living body, and its diseases by the use of any physical, thermal or manual method and use the X-ray diagnoses and analysis taught in any accredited chiropractic school or college and (B ) persons who adjust any misplaced tissue of any kind or nature,...