Siegrist v. Iwuagwa

• Decision Date: 26 September 1997
• Docket Number: No. A97A1338,A97A1338
• Citation: 494 S.E.2d 180,229 Ga.App. 508
• Parties: , 97 FCDR 3605 SIEGRIST v. IWUAGWA.
• Court: Georgia Court of Appeals

Page 180

494 S.E.2d 180

229 Ga.App. 508, 97 FCDR 3605

SIEGRIST v. IWUAGWA.

No. A97A1338.

Court of Appeals of Georgia.

Sept. 26, 1997.

Reconsideration Denied Nov. 21, 1997.

Certiorari Denied May 1, 1998.

Suzanne A. Littlefield, Austell, for appellant.

Downey & Cleveland, Richard A. Griggs, Marietta, for appellee.

BLACKBURN, Judge.

Dr. Harry E. Siegrist III appeals from the trial court's grant of summary judgment in favor of Augustine Iwuagwa in Siegrist's suit to collect payment for the rendering of services which were outside the scope of chiropractic treatment. Siegrist, a chiropractor, claims he is entitled to payment from Iwuagwa, a former patient, for massages which are not authorized chiropractic treatment under OCGA § 43-9-16. Siegrist provided the massages to Iwuagwa while treating him for soft tissue injuries sustained in an automobile accident. Because OCGA § 43-9-16 limits the authorized treatments which chiropractors may provide to those modalities listed therein, and because massage is not listed as an authorized treatment modality under the statute, Siegrist is not entitled to recover for the massages.

The facts show that after he was injured in an automobile accident, Iwuagwa presented himself at Siegrist's office, a health care provider, for treatment of his injuries. According to the patient information form he completed prior to seeing Siegrist, Iwuagwa sought "lasting correction" of the soft-tissue injuries he had sustained in the collision. As a condition of receiving this treatment, he was required to sign, on "Chiropractic Health Clinic" letterhead, a statement guaranteeing payment to Siegrist for all charges incurred. The form made no reference to massages, the fact that services outside the statutory limits for chiropractic treatment might be given, or any indication of the charge for any treatment.

The record does not reflect that Siegrist and Iwuagwa had any discussion or negotiation regarding what specific services Siegrist would provide to Iwuagwa, including what types of treatments Siegrist would administer to Iwuagwa. Nor does the record reflect that the parties ever discussed Siegrist's provision of massages as part of Iwuagwa's chiropractic rehabilitation. However, the record does indicate that on 18 of Iwuagwa's visits to Siegrist's office for treatment, Siegrist chose to administer massage as part of that treatment at a rate of $22 per massage. Based upon the record before us, throughout Iwuagwa's treatment with Siegrist, Siegrist selected all of the treatments, including massage, which, in his professional chiropractic judgment, he felt were beneficial to Iwuagwa.

Iwuagwa had insurance which covered the injuries he received in the collision, and this insurance paid the majority of the cost of his treatments with Siegrist. However, when Iwuagwa's insurer refused to pay for the massages, claiming they were outside the scope of authorized chiropractic treatment, Iwuagwa also refused to pay for the massages, presumably on the same basis. Siegrist thereafter filed suit in magistrate court, and Iwuagwa prevailed. When Siegrist appealed this decision de novo to the state court, both parties moved for summary judgment. Iwuagwa's motion for summary judgment was granted, and it is from this ruling that Siegrist appeals.

Our standard of review for this contention is well-established. "On appeal from a trial court's grant of summary judgment, this Court conducts a de novo review of the evidence. In order to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991)." (Citation and punctuation omitted.) Gentile v. Bower, 222 Ga.App. 736, 477 S.E.2d 130 (1996).

1. Siegrist argues that the trial court erred in finding that, because massage is not listed in OCGA § 43-9-1 et seq. as a permissible practice for chiropractors, Siegrist was not authorized to perform such service as chiropractic treatment and to charge Iwuagwa for it. Specifically, the trial court found that the chiropractic profession is strictly regulated in Georgia, that the permissible chiropractic procedures are clearly set forth by statute, and that massage is not included in the procedures listed in the statute. Siegrist acknowledges the scope of the chiropractic statutes. He argues however that as anyone can perform massage, his status as a chiropractor should not prevent him from being able to perform massages.

Because the statutes applicable to chiropractors and the practice of chiropractic hold otherwise, Siegrist's argument is without merit. OCGA § 43-9-1(2) defines "chiropractic" as "the adjustment of the articulation of the human body.... [T]hat separate and distinct branch of the healing arts whose science and art utilize the inherent recuperative powers of the body and the relationship between the musculoskeletal structures and functions of the body ... in the restoration and maintenance of health." OCGA § 43-9-16 further defines the practice of chiropractic, and sets forth the procedures which chiropractors may and may not utilize in treating patients. It is primarily this section which defeats Siegrist's argument.

Pursuant to OCGA § 43-9-16(e), chiropractors may not prescribe or administer medicine, perform surgery, or practice obstetrics or osteopathy. Nor may they use invasive procedures such as venipuncture, capillary puncture, acupuncture, and colonics. OCGA § 43-9-16(f). OCGA § 43-9-16 also contains a detailed list of what specific treatment modalities chiropractors are entitled to use. In addition to manual, electrical, and mechanical adjustments of the human body, chiropractors may utilize the following electrical therapeutic modalities: therapeutic ultrasound, galvanism, microwave, diathermy, and electromuscular stimulation. OCGA § 43-9-16(b). Massage, which would be a treatment modality, is not included in this list, and it does not appear, either specifically or by implication, anywhere else in the chapter on chiropractic. Because the statutes which govern his profession do not provide that he may administer massages as part of a patient's chiropractic treatment, it is clear that Siegrist was not authorized, in his chiropractic treatment of Iwuagwa, to provide massages and then charge Iwuagwa for them.

Statutory construction of this sort is so frequently relied upon by this Court and the Supreme Court that its soundness is above question. "The omission of any reference to [massage] from OCGA § [43-9-16] ... invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things of many are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. The omission of any such reference from OCGA § [43-9-16] must be regarded as deliberate." (Citations and punctuation omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga.App. 70, 72, 456 S.E.2d 642 (1995). Accordingly, under the current statutory scheme, chiropractors may not, as a part of their chiropractic services, treat patients with massages for a fee. See also Metoyer v. Woodward, 176 Ga.App. 826, 338 S.E.2d 286 (1985) (finding that OCGA § 43-9-16, as it existed in 1985, did not permit chiropractors to use the techniques of galvanism and ultrasound diathermy).

The dissent argues that OCGA § 43-9-16, which states that "chiropractic adjustment of the articulations of the human body may include manual adjustments," is broad enough to encompass the giving of massages. However, this issue was not raised in the pleadings in the trial court or on appeal by Siegrist. There is no transcript showing that Siegrist raised this argument in the trial court, as required to preserve it for appellate review. Inasmuch as "[w]e will not consider the validity of a trial court's ruling based on a completely different legal issue than timely and specifically raised below," Siegrist would be barred from asserting such an argument on appeal. Saffar v. Chrysler First Business Credit Corp., 215 Ga.App. 239, 240(1), 450 S.E.2d 267 (1994).

While the dissent correctly cites OCGA § 43-9-16(b) for the proposition that "[t]he chiropractic adjustment of the articulations of the human body may include manual adjustments," the statute's use of the term "manual adjustments" is not broad enough to encompass massages. As used in the statute, "manual adjustments" refer to a method for adjusting the "articulations " of the human body. Stedman's Medical Dictionary, 23rd edition states that "articulations" are joints--"the place of union, usually more or less movable, between two or more bones." "Chiropractic adjustment of articulations," including "manual adjustments," therefore means manipulations of the joints of the human body. Massage, by contrast, does not involve manipulations of the joints of the human body. In fact, Siegrist himself defines massage as "a body rub given to improve circulation and relax muscles." Accordingly, as manual adjustments of articulations refers to joints, and as massage is not a "manual adjustment" of joints, OCGA § 43-9-16(b) provides no support for the dissent even if the issue had been preserved and was properly before us.

A review of prior chiropractic cases supports our conclusion that massages are not statutorily authorized chiropractic treatment. Foremost among these is Foster v. Georgia Bd. of Chiropractic Examiners, 257 Ga. 409, 359 S.E.2d 877 (1987), wherein the Supreme Court examined the dispensing of nutritional substances by a chiropractor, Foster, to his...