Foster v. Georgia Bd. of Chiropractic Examiners, 44642
| Decision Date | 08 September 1987 |
| Docket Number | No. 44642,44642 |
| Citation | 359 S.E.2d 877,257 Ga. 409 |
| Parties | FOSTER v. GEORGIA BOARD OF CHIROPRACTIC EXAMINERS. |
| Court | Georgia Supreme Court |
Charles M. Cork III, Reynolds & McArthur, Macon, for Charles foster.
Michael J. Bowers, Atty. Gen., H. Perry Michael, First Asst. Atty. Gen., Stephanie B. Manis, Sr. Asst. Atty. Gen., Mary E. Costello, Mark H. Cohen, Asst. Atty. Gens., for Georgia Bd. of Chiropractic Examiners.
Demetrius Mazacoufa, Richard L. Greene, Jerry L. Sims, Daniel J. Weber, amici curiae.
The appellant, Charles Foster, is a licensed chiropractor in the State of Georgia. The state instituted administrative proceedings against him, seeking the imposition of sanctions on grounds that in dispensing certain nutritional substances for treatment of a patient, he engaged in the prescribing of drugs and thereby exceeded the statutorily authorized scope of his license to practice chiropractic in this state. The hearing officer concluded that the appellant had exceeded the scope of his chiropractic license, and sanctions were imposed. In reviewing the hearing officer's decision, the appellee, the Georgia Board of Chiropractic Examiners, agreed that the appellant was not authorized to prescribe the nutritional treatment, but the Board modified the sanctions imposed by the hearing officer. The superior court summarily affirmed the decision of the Board. The appellant filed an application for discretionary appeal in this court, challenging the constitutionality of the applicable statutory provisions as construed by the tribunals below. We granted the appellant's application for discretionary appeal, for the purpose of deciding "[w]hether the Georgia Code allows chiropractors to prescribe nutritional treatment for their patients, and if so, to what extent." For reasons which follow, we hold that, at least under the circumstances here, the chiropractor was not authorized to prescribe the nutritional treatment. We, therefore, affirm.
Based upon facts stipulated by counsel for the parties, the hearing officer found and concluded as follows:
On September 19, 1984, a patient, referred to as L.R. (who was, in fact, an undercover agent for the state), visited the appellant's office. The patient completed a medical history form, indicating that he was generally feeling tired and run down and that he was taking "Corgard," a heart medication. The appellant indicated to the patient that a complete blood history and urinalysis would be needed.
The appellant consulted with a licensed medical doctor regarding the patient's condition and the advisability of having a blood history done by a laboratory. The licensed medical doctor concurred that a blood history should be done on the patient and instructed the appellant to have a licensed practical nurse withdraw the blood from the patient, which was done. The blood samples were sent to a laboratory for analysis, and a blood-analysis report was sent by the laboratory to the appellant.
From the blood-analysis report, the appellant prepared a report, entitled a "Bio-Chemical Interpretation," for the patient. From this, the appellant prescribed a course of treatment for the patient's condition, which included taking the following substances, pursuant to specific instructions as to the amount and timing of the substances to be taken:
1. Samolinic
2. Digestaid
3. Prostadyn
4. Supra Renal 220
5. Organamin
6. Free Amino
These substances may be sold without prescription and are, in fact, sold in food stores by merchants and other lay persons; in addition, the substances are not habit-forming and do not require medical supervision for use. The substances are used by the appellant to treat dietary deficiencies and to enhance the well-being of the patient.
The hearing officer concluded that the use of the substances in question by the appellant to treat the patient constitutes the prescribing or use of drugs, in violation of the Georgia Chiropractic Practices Act. OCGA § 43-9-1 et seq. (referred to hereinafter as the Georgia CPA).
Based on this, the hearing officer, likewise, concluded that the appellant's conduct constitutes unprofessional conduct harmful to the public and of a nature likely to jeopardize the interest of the public, in violation of OCGA § 43-9-12(a)(6). The hearing officer further concluded that the appellant's conduct also constitutes a violation of OCGA §§ 43-9-12(a)(8) and 43-34-46, in that the appellant has practiced medicine in Georgia without a license. The hearing officer ordered that the appellant's license to practice chiropractic in Georgia be suspended for a period of three years, but that said sanction be suspended and the appellant's license be put on probation for the three-year period.
Pursuant to OCGA § 50-13-17(a), the appellant applied to the appellee for review of the hearing officer's decision. The appellee adopted the hearing officer's findings of fact and conclusions of law. However, the sanction imposed against the appellant was amended to provide that the appellant's license to practice chiropractic in this state would be suspended, but placed on probation for a two-year period, conditioned on his abiding by all state and federal laws, and administrative regulations, relating to the practice of chiropractic in Georgia. In addition, the appellee imposed a $500 fine against the appellant.
As defined by OCGA § 43-9-1 ..., " '(c)hiropractic means the adjustment of the articulation of the human body, including ilium, sacrum, and coccyx, and the use of electric X-ray photography, provided that the X-ray shall not be used for therapeutical purposes.' This definition has existed unchanged since its original enactment by Ga.L.1921, pp. 166, 167. The following language was, however, added to the statute in 1977: Ga.L.1977, p. 232. See OCGA § 43-9-1(2), supra.
"The authorized scope of practice of chiropractors is further delineated by OCGA § 43-9-16 ..., which provides in pertinent part, as follows: '(a) Chiropractors who have complied with this chapter shall have the right to adjust patients according to specific chiropractic methods.' " (footnote omitted.) Metoyer v. Woodward, 176 Ga.App. 826, 827-828, 338 S.E.2d 286 (1985).
The prohibition against chiropractors' use of drugs or surgery, as contained in OCGA § 43-9-1(2), supra, is repeated in OCGA § 43-9-16(c), which provides: "Chiropractors shall not prescribe or administer medicine to patients, perform surgery, or practice obstetrics or osteopathy."
The appellant's basic argument, as a matter of statutory construction, is that, based on the status of chiropractic in 1921, the General Assembly defined it as an adjustment of the articulation of the human body. However, the appellant asserts that subsequent developments in chiropractic education and training embrace nutrition, among other modalities, as a proper part of chiropractic, and the 1977 redefinition of chiropractic was intended to embrace such modalities within the official, extremely broad definition of chiropractic. In support of this argument, the appellant further contends that in all accredited chiropractic colleges in this country, students are specifically instructed in the diagnostic essentials of how nutrition relates to human health and the recuperative powers of the human body.
More specifically, referring to the language employed in the 1977 statutory redefinition of chiropractic in Georgia, the appellant argues that "the inherent recuperative powers of the body" can be altered by neurological dysfunction and cannot be restored without providing man with proper vitamins and minerals, which are necessary for "the normal transmission and expression of nerve energy ... essential to the restoration and maintenance of health." So this argument proceeds, nutrition also aids the process of spinal adjustment. The appellant seeks to distinguish vitamins from drugs by arguing that vitamins are naturally occurring substances that promote the free flow of energy, whereas drugs "insult the totally mobile and free-flowing expression of nerve energy."
Thus, the appellant's contention in this regard is that by proper nutrition through the ingestion into the human body of vitamin and mineral substances, chiropractic seeks to "utilize the inherent recuperative powers of the body and the relationship between musculoskeletal structures and functions of the body, particularly of the spinal column and the nervous system, in the restoration and maintenance of health," since "the normal transmission and expression of nerve energy are essential to the restoration and maintenance of health."
(1) In King v. Bd. of Med. Examiners, 65 Cal.App.2d 644, 151 P.2d 282(5) (1944), vitamins and other non-prescription substances were prescribed by a practitioner of a drugless health profession for a patient, but not for the treatment of a disease or ailment. There, it was held that the defendant was not guilty of practicing medicine...
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