State, ex rel. Iowa Dept. of Health v. Van Wyk

• Decision Date: 16 June 1982
• Docket Number: No. 65904,65904
• Citation: 320 N.W.2d 599
• Parties: STATE of Iowa, ex rel., IOWA DEPARTMENT OF HEALTH, Appellee, v. Kenneth VAN WYK, Appellant, Iowa Board of Chiropractic Examiners, Amicus Curiae.
• Court: Iowa Supreme Court

Page 599

320 N.W.2d 599

STATE of Iowa, ex rel., IOWA DEPARTMENT OF HEALTH, Appellee, v. Kenneth VAN WYK, Appellant Iowa Board of Chiropractic Examiners, Amicus Curiae.

No. 65904.

Supreme Court of Iowa.

June 16, 1982.

Lex Hawkins, Glenn L. Norris, and George F. Davison, Jr., of Hawkins & Norris, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., and Jeanine Freeman, Asst. Atty. Gen., for appellee.

Edward W. Dailey Law Offices, P.C., Burlington, for amicus curiae.

Considered en banc.

HARRIS, Justice.

This appeal challenges the scheme by which the professional activities of chiropractors are defined and limited. Van Wyk, a chiropractor, was enjoined from (1) performing acupuncture, (2) withdrawing, or ordering withdrawal of, his patient's blood for analysis, and (3) prescribing or recommending a dietary course of treatment. Defendant has received training for these three practices in an approved chiropractic college. The trial court held that all three of these activities fall outside the ambit of those chiropractic functions contemplated or allowed by statute. The Iowa board of chiropractic examiners sought to intervene in defendant's support. As a preliminary question we have to determine the appropriateness of the intervention. More fundamental questions are whether the trial court rightly interpreted our statutes on chiropractic activity and, if so, whether the scheme is constitutional. We affirm the trial court.

This suit is but one manifestation of a protracted philosophical dispute between the Iowa department of health (hereinafter the department) and the Iowa board of chiropractic examiners (hereinafter the board). The board believes the definition and scope of chiropractic should and must be expanded to stay abreast developments in that field. The department believes chiropractic should remain carefully circumscribed.

The facts are not at issue in this confrontation. Defendant undertook training in health care activities which he and his examining board determined to be appropriate for a chiropractor but which would be an expansion on chiropractic activity as defined in State v. Boston, 226 Iowa 429, 278 N.W. 291 (1938), Supp. 284 N.W. 143 (1939). The petition alleged defendant performed acupuncture upon a patient in treating for a pinched nerve. It alleged defendant directed a nurse under his supervision to draw blood from another patient for diagnostic purposes and later advised that patient with respect to a diet. On these bases it was asserted defendant was engaged in, and should be enjoined from, the practice of medicine and surgery or of osteopathic medicine and surgery.

Responding to plaintiff's application for separate adjudication of law points (Iowa R.Civ.P. 105) the trial court held that acupuncture, drawing of blood, and advice on diet and nutrition based on blood analysis are outside the scope of chiropractic and within the scope of medicine and surgery or osteopathic medicine and surgery. For reasons we shall explain, we agree.

Defendant admitted past use of chiropractic acupuncture (though he denied using needles in performing chiropractic neural reflex treatment). He stated he continued to draw blood from patients for diagnostic purposes and continued to advise patients on diet, food, and exercise. He stated he did so to support therapy, either as an adjustment of musculo-skeletal structures or to support other methods of chiropractic treatment for the purpose of aiding the human body in performing its natural function. In defense of this practice the defendant attached a declaratory ruling of the board of chiropractic examiners, dated January 7, 1978, which determined that these and various other practices were proper chiropractic treatment. A permanent injunction followed, restraining defendant from the three practices.

We issued a stay of the injunction pending appeal and granted the board of chiropractic examiner's request to participate amicus curiae. Some of the assignments will be considered together. Because we are to review the grant of summary judgment we must decide if plaintiff should prevail as a matter of law. Anita Valley Inc. v. Bingley, 279 N.W.2d 37, 40 (Iowa 1979).

I. The trial court denied the board of chiropractic examiner's petition for intervention. This denial is challenged in a separate assignment of error.

We take the traditional, liberal view of intervention. Iowa State Dept. of Health v. Hertko, 282 N.W.2d 744, 754 (Iowa 1979); Rick v. Boegel, 205 N.W.2d 713, 717 (Iowa 1973). Nevertheless we think intervention was properly denied here. Under section 679.19, The Code 1981, litigation is prohibited between administrative departments, commissions, or boards of state government.

The board argues this is a suit between the state and the board rather than between the department and the board and, hence, section 679.19 is inapplicable. But this suit is only nominally pressed by the state. It is fundamentally a dispute between the department and the board and plainly falls within the statutory prohibition. Llewellyn v. Iowa State Commerce Commission, 200 N.W.2d 881, 884 (Iowa 1972). We do not suggest that a board, as an arm of the state, can sue the state. We merely find this dispute to be one between the department and board and hold it to be proscribed by section 679.19. The practical effect here is not great. We have the advantage of extensive amicus curiae briefs filed in behalf of the board and heard its oral argument on submission of this appeal.

II. At issue is the right of chiropractors, here represented by the individual defendant, to determine and set the parameters of chiropractic treatment. The question is whether practitioners of this branch of health care are free to practice courses of treatment outside carefully defined limits. They argue this would be in the public interest because, with increased knowledge and experience, practitioners in any health field should be free to increase and expand techniques for health care.

Predictably, defendant's goal is also that of the board. But the goal is barred by long established principles which carefully describe the meaning of the term chiropractic.

The statutes governing chiropractic appear in chapter 151, The Code. Those for medicine appear in chapter 148, The Code. And the provisions governing osteopathic medicine appear in chapter 150A, The Code. The chiropractic definition in chapter 151 is plainly restrictive when compared with the definitions for medicine or osteopathic medicine. All three definitions contain provisions which are not actually descriptive but are intended merely to impose professional discipline upon all persons pretending to be practitioners: See §§ 151.1(1), 148.1(1), and 150A.1(1).

Chiropractors are defined as:

Persons who treat human ailments by the adjustment of the musculoskeletal structures, primarily spinal adjustments by hand, or by other procedures incidental to said adjustments limited to heat, cold, exercise and supports, the principles of which chiropractors are subject to examination under the provisions of section 151.3, but not as independent therapeutic means.

§ 151.1(2), The Code.

In contrast medical practitioners are defined as:

Persons who prescribe, or prescribe and furnish medicine for human ailments or treat the same by surgery.

§ 148.1(2), The Code.

Practitioners of osteopathic medicine and surgery are similarly defined:

Persons who prescribe, or prescribe and furnish medicine for human ailments or treat the same by surgery.

§ 150A.1. (2), The Code.

In State v. Boston, supra, the trial court issued a permanent injunction restraining Boston, a chiropractor from

the use of physiotherapy, electrotherapy, colonic irrigation, colon hygiene, ultra-violet rays, infra-red rays, radionics machines, traction tables, white lights, cold quartz ultra-violet light, neurolectric vitalizer, electric vibrator, galvanic current and sinusoidal current for the purpose of treatment of the sick or for any other purpose in connection with his practice of chiropractic and from the use of medicine and surgery and from prescribing certain or specific course of diet for any patient as an independent remedy or means of treatment.

226 Iowa at 434, 278 N.W. at 293. On Boston's appeal we affirmed the issuance and held the injunction should extend to prohibit prescribing for or advising defendant's patient with respect to diet.

We granted Boston a rehearing after which he rephrased the question as follows: "Do the things which the evidence shows the defendant did, constitute the practice of medicine and surgery?" Boston argued that a chiropractor, as a member of a healing profession, could use any method of treatment so long as he did not violate the expressed prohibitions found in the code. We persisted in our original view:

The practice of medicine and surgery is the practice of the healing art, and, unless some restrictions be placed thereon by the legislature, the whole field of medicine and surgery is open to the practitioner. On the other hand, the practice of chiropractic, although recognized as a branch of the healing art, is throughout held and considered to be only one form of the practice, within well-defined limits, of the science of healing, as such practice is defined by Code section 2555. That is the method which may be used. To this the legislature has added, in section 2559, certain prohibitions. The legislature has prescribed the method of healing which may be used by these practitioners, and has further mentioned other methods which may not be used. The original opinion, describing the method these practitioners may employ, holds that these restrictions merely emphasize the limitations laid down in section 2555, to which defendant takes exception.

If section 2559 broadened the field in which the chiropractor might practice, and if he has the right to go outside the restrictions and employ other methods except such as are...