Attorney General, on behalf of People v. Beno
| Decision Date | 27 August 1985 |
| Docket Number | Docket No. 71158 |
| Citation | 373 N.W.2d 544,422 Mich. 293 |
| Court | Michigan Supreme Court |
| Parties | ATTORNEY GENERAL, on Behalf of the PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James J. BENO, D.C., Defendant-Appellant. 422 Mich. 293, 373 N.W.2d 544 |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Mary K. Hicks Asst. Atty. Gen., Lansing, for plaintiff-appellee.
Robert Dean, East Lansing, for defendant-appellant.
Michael C. Levine, Lansing, for Michigan State Chiropractic Association, amicus curiae.
Kirkpatrick W. Dilling, Robert E. Armstrong, Chicago, Ill., for amicus curiae The Nat. Health Federation.
This case requires interpretation of the "practice of chiropractic" under the licensing provision of the Public Health Code as it relates to the use of x-ray in other than the spinal area, the giving of a general physical examination including the analysis of hair and urine samples, the execution of an employee health record, the use of galvanic current, ultrasound and diathermy, and the dispensing of vitamins to patients.
We hold that the dispensing of vitamins is within the practice of chiropractic, that the record is not sufficiently developed to decide the applicability of the statute as to the use of galvanic current for diagnostic purposes, but concur with the Court of Appeals that the remaining enumerated practices fall outside of the chiropractic statute. We find, however, that the issuance of an injunction against these practices, merely because they are not included within chiropractic, is in error, and we remand for an opportunity to establish that they constitute the unlicensed practice of medicine, or some other "violation" of article 15 of the Public Health Code so as to justify an injunction. M.C.L. Sec. 333.16291(1); M.S.A. Sec. 14.15(16291)(1).
This case arises as a result of visitations by an investigator employed by the Department of Licensing and Regulation, at the office of Dr. James Beno, a licensed chiropractor. In his first visit to the office in March of 1977, the investigator complained of low back pain and a sore elbow. He completed a personal data card and history sheet. The appellant then took a series of four x-rays of the lower back and four x-rays of the right elbow and asked the investigator-patient to return at a later date.
A second visit occurred a week later, at which time appellant performed a physical examination, which included a taking of the patient's blood pressure, a reading of his pulse, and an examination of his lungs, eyes, ears, nose, throat, mouth and heart. Dr. Beno further performed a series of neurological tests by tapping with a rubber hammer and palpating various portions of the investigator's anatomy. A urine specimen was obtained. Next, the appellant photographed the investigator's spinal area with a polaroid camera in a process called contour analysis. The patient was then placed on a table where Dr. Beno, using a Rich-MAR galvanic stimulator, sought trigger points or hypersensitive neurological irritants in his back. Following the proceedings, he was asked to return with his spouse to discuss treatment.
With a female investigator posing as his wife, the investigator returned for a third office call five days later. Dr. Beno described the patient's spine as being slightly twisted and one hip as being higher than the other. This was explained as a problem involving an L-5-S-1 subluxation, and the doctor presented the patient with a proposed treatment plan. The treatment plan was said to have an eighty-nine percent probability of complete recovery based on similar conditions in other patients. Therapy would include adjustments to free pinched nerves, ultrasound to reduce irritation, and, to accelerate healing, deep massage and diathermy would be used. Also included in the therapy would be intersegmental traction to tighten ligaments and stabilize joints, galvanic currents to release trigger points, a second set of x-rays and complete examination, as well as oral intake of Nuclix, a dietary supplement containing vitamins and minerals, in order to rebuild back ligaments. Compensation was discussed.
During this third visit, Dr. Beno executed a form employee health record indicating that the investigator was approved for employment. He put check marks under the category "normal" for numerous aspects of the investigator's health, including heart, chest-lungs, abdomen, eyes, head, and skin. Dr. Beno signed the form in a box marked "examining physician," but with the letters "D.C." following his signature. In the course of his testimony Dr. Beno revealed that while he did not do so on this occasion, he also frequently used hair sample analysis in his patient work-up.
In September of 1977, appellee filed a complaint in circuit court seeking to enjoin defendant from engaging in certain practices mentioned above. At the time the action was commenced, the practice of chiropractic was defined in the chiropractic act, M.C.L. Sec. 338.151 et seq.; M.S.A. Sec. 14.591 et seq. The act was subsequently repealed and replaced by the Public Health Code, 1978 P.A. 368, effective September 30, 1978, M.C.L. Sec. 333.1101 et seq.; M.S.A. Sec. 14.15(1101) et seq. See M.C.L. Sec. 333.16401 et seq.; M.S.A. Sec. 14.15(16401) et seq.
Following an initial hearing, the circuit court, on January 23, 1978, issued a preliminary injunction which remained in effect until the effective date of the Public Health Code, September 30, 1978. 1 After the code became effective, the circuit court, on motion of appellant, dissolved the preliminary injunction and remanded the matter to the Department of Licensing and Regulation, Board of Chiropractic, for an "advisory opinion" concerning whether the procedures conducted by Dr. Beno were violative of the new code provisions regarding chiropractic practice. 2
Hearings were then held before an administrative law examiner who issued findings of fact and conclusions of law. The board reviewed the matter on the record and on January 27, 1981, entered an opinion which separately addressed each of the practices conducted by appellant.
In May of 1981, the circuit court entered an order that further proceedings in the case were to be treated as an appeal from an administrative agency. 3 On November 2, 1981, the circuit court issued an opinion finding that the challenged procedures conducted by appellant were outside the scope of chiropractic practice as defined in the Public Health Code. On November 19, 1981, the court permanently enjoined defendant from engaging in those practices. 4
The Court of Appeals affirmed the trial court's order permanently enjoining defendant from engaging in the practices determined to be outside the scope of chiropractic practice. Attorney General v. Beno, 124 Mich.App. 342, 335 N.W.2d 31 (1983).
We granted defendant's application for leave to appeal on May 17, 1984. 419 Mich. 869.
Defendant's practices and procedures that were ultimately enjoined were treated in the following manner in the course of the development of the record before us.
The hearing officer, Board of Chiropractic, trial court, and the Court of Appeals found that the taking of x-rays of the elbow exceeded the scope of the practice of chiropractic. The hearing officer, trial court, and the Court of Appeals found that the giving of a general physical examination and the use of urine and hair samples also exceeded the scope of chiropractic, but the board found their use to be within the practice of chiropractic. The hearing officer and the board were in agreement that the execution of an employment approval physical form was within the purview of chiropractic under the act, but the trial court and the Court of Appeals found it to be outside the act.
All four bodies found the use of ultrasound, diathermy, and galvanic procedures to be outside the practice of chiropractic, with the exception that the board held that the galvanic current procedure could be used for diagnostic purposes.
Finally on the question of the prescription and sale of vitamins, the hearing officer and the board found it within the scope of chiropractic, while the courts disagreed.
The appellant points out that the approach of the lower tribunals was to examine each of the practices and procedures complained of by testing them against the statutory definition of the practice of chiropractic, and to the extent they were found not to be defined therein they were considered to be unlawful. He argues persuasively, we find, that the purpose of the licensing statute is not to prohibit the doing of those acts that are excluded from the definition of chiropractic, but to make it unlawful to do without a license those things that are within the definition. In other words, appellant's activities are not automatically enjoinable merely because they are not within the scope of chiropractic practice. Rather, an injunction is only proper, under article 15 of the Health Code, upon a finding that the practices complained of constitute a "violation" of a statute or rule promulgated under article 15. M.C.L. Sec. 333.16291(1); M.S.A. Sec. 14.15(16291)(1). An obvious example of enjoinable activities are those that constitute the practice of medicine where the actor is without a medical license to do so. M.C.L. Sec. 333.17001(1)(c); M.S.A. Sec. 14.15(17001)(1)(c).
The Attorney General does not dispute appellant's contention in this regard, but rather argues that all of these activities that were enjoined were outside of chiropractic and that despite no such finding below we should find as a matter of law that they amounted to the practice of medicine without a license.
The practice of medicine is defined as
"the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice,...
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