Tex. Bd. of Chiropractic Examiners v. Tex. Med. Ass'n

• Decision Date: 06 July 2012
• Docket Number: No. 03–10–00673–CV.,03–10–00673–CV.
• Citation: 375 S.W.3d 464
• Parties: TEXAS BOARD OF CHIROPRACTIC EXAMINERS, Glenn Parker, Executive Director, and Texas Chiropractic Association, Appellants v. TEXAS MEDICAL ASSOCIATION, Texas Medical Board, and the State of Texas, Appellees.
• Court: Texas Court of Appeals

375 S.W.3d 464

TEXAS BOARD OF CHIROPRACTIC EXAMINERS, Glenn Parker, Executive Director, and Texas Chiropractic Association, Appellants

v.TEXAS MEDICAL ASSOCIATION, Texas Medical Board, and the State of Texas, Appellees.

No. 03–10–00673–CV.

Court of Appeals of Texas,

Austin.

July 6, 2012.

Held Invalid

22 TAC § 75.17(a)(3), (e)(2)(O).

Jason D. Ray, Jennifer S. Riggs, Riggs, Aleshire & Ray, P.C., Joe H. Thrash, Assistant Attorney General, Environmental Protection & Administrative Law Division, Matt C. Wood, Baker Botts, L.L.P., Austin, TX, for appellant.

David F. Bragg, Law Offices of David F. Bragg, P.C., Bastrop, TX, Nancy K. Juren, Angela V. Colmenero, Assistant Attorney General, General Litigation Division, Donald P. Wilcox, Andrea Schwab, C.J. Francisco, Office of General Counsel, Texas Medical Association, Austin, TX, for appellee.

Before Chief Justice JONES, Justices PEMBERTON and HENSON.

OPINION

BOB PEMBERTON, Justice.

We withdraw our opinion and judgment dated April 5, 2012, and substitute the following in its place. The motion for rehearing filed by appellee Texas Medical Association is denied.

The Texas Board of Chiropractic Examiners (TBCE), its executive director, and the Texas Chiropractic Association appeal a final district court judgment invalidating portions of TBCE's recently adopted administrative rule defining the scope of practice of chiropractic. See22 Tex. Admin. Code § 75.17 (2011) (Tex. Bd. of Chiropractic Exam'rs, Scope of Practice). The rule provisions at issue purport to authorize TBCE's licensees to perform procedures known as manipulation under anesthesia and needle electromyography, and to “diagnose” certain conditions. See id. § 75.17(a)(3), (c)(2)(D), (c)(3)(A), (d)(1)(A)–(B), (e)(2)(O). We will affirm the judgment in part and reverse and remand in part.

BACKGROUND

Article XVI, section 31 of the Texas Constitution authorizes the Legislature to “pass laws prescribing the qualifications of practitioners of medicine in this State,” with the caveat that “no preference shall ever be given by law to any schools of medicine.” Tex. Const. art. XVI, § 31. In turn, the Legislature has enacted the Medical Practice Act, in which it has delegated broad authority to the Texas Medical Board (TMB) to regulate the “practice of medicine” in this state, mandated that a person cannot lawfully “practice medicine” without a TMB-issued license, and imposed rigorous education and training requirements as a prerequisite to licensing eligibility. SeeTex. Occ.Code Ann. §§ 151.001–.056 (West 2004 & Supp. 2011) (Medical Practice Act); id. §§ 151.003(2) (providing that TMB “should remain the primary means of licensing, regulating, and disciplining physicians.”), 152.001(a) (West Supp. 2011) (designating TMB as agency with power to regulate the practice of medicine), 153.001(3) (West 2004) (granting TMB the authority to adopt rules to regulate the practice of medicine), 155.001 (West 2004) (requiring license to practice medicine), 155.003 (West Supp. 2011) (setting forth requirements for license to practice medicine). The Legislature has defined “practicing medicine” under the Medical Practice Act as “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions” by a person who either “directly or indirectly charges money or other compensation for those services” or publicly professes to be a physician or surgeon. See id. § 151.002(a)(13).

However, the Legislature has carved out of this broad definition of “practicing medicine”—and, thus, exempted from the Medical Practice Act's education, training, and licensing standards and the TMB's regulatory authority—a variety of other health-related fields on which it has imposed different legal requirements and regulations. See id. § 151.052. Such exemptions, our Texas high courts have reasoned, do not amount to an unconstitutional “preference ... to any school[ ] of medicine” to the extent the exempted treatment or method does not extend to the “whole body.” See Schlichting v. Texas State Bd. of Med. Exam'rs, 158 Tex. 279, 310 S.W.2d 557, 564 (1958); Ex parte Halsted, 147 Tex.Crim. 453, 182 S.W.2d 479, 486 (1944). Among the exemptions, the Legislature has included “a licensed chiropractor engaged strictly in the practice of chiropractic as defined by law.” SeeTex. Occ.Code Ann. § 151.052(a)(3). Chiropractors are currently regulated under chapter 201 of the occupations code, which defines the permissible scope of chiropractic practice, imposes its own set of educational and licensing requirements, and delegates authority to TBCE to administer the regime. See id. §§ 201.001–.606 (West 2004 & Supp. 2011).

The net effect of the statutory interplay is that a person licensed by TBCE as a chiropractor but not by the TMB to “practice medicine” (i.e., as a physician ¹) can lawfully do things that would otherwise constitute “practicing medicine” as long as he remains within the statutory scope of chiropractic under chapter 201. However, to the extent he exceeds the statutory scope of chiropractic, he would subject himself to the Medical Practice Act—and practice medicine unlawfully. See id.§§ 151.002(a)(13), 201.002; ²see also Teem v. State, 79 Tex.Crim. 285, 183 S.W. 1144 (1916) (involving prosecution of chiropractor for unlawfully practicing medicine prior to Texas's legislative recognition and legalization of chiropractic). Another consequence of this statutory interplay is a long history of professional, scientific, or economic antagonism between chiropractors and the medical community, and resultant disputes, spanning all three branches of government, regarding where any legal line between chiropractic and the practice of medicine is or should be. Key participants in these disputes have included the two professional associations that are parties to this appeal, the Texas Chiropractic Association (TCA) and the Texas Medical Association (TMA), which advocate on behalf of the respective interests of chiropractors and physicians and their sometimes-competing views of patient welfare.

Chiropractic was historically rooted in a theory that a wide range of human health problems stem from spinal misalignment—or a broader category of spinal disorders termed “subluxations”—and can be cured through manipulation of vertebrae.³ At its 1949 inception, Texas's statutory regime defining and regulating chiropractic reflectedthis traditional focus on ascertaining spinal problems and manipulating vertebrae as an intended means of cure.⁴ However, over the ensuing decades, Texas chiropractors evidently came to engage in identifying and treating a wider range of musculoskeletal problems with a wider range of procedures or methods. In 1989, the Legislature saw fit to take account of these developments through amendments to the statutory definition of chiropractic practice that expanded the focus of chiropractic beyond the spine to the more general “biomechanics” of the “musculoskeletal system,” and added somewhat broader language regarding the treatments or methods chiropractors could perform. See Act of May 12, 1989, 71st Leg., R.S., ch. 227, §§ 1–3, 1989 Tex. Gen. Laws 1005, 1005–06. ⁵ Although procedures entailing “surgery, drugs that require a prescription to be dispensed, x-ray therapy, or therapy that exposes the body to radioactive material” were expressly excluded from the practice, chiropractors were now permitted to use (1) “objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body” and (2) “adjustment, manipulation, or other procedures in order to improve subluxation or the biomechanics of the musculoskeletal system.” See id.§§ 1, 3, 1989 Tex. Gen. Laws at 1005–06.

In the aftermath of the 1989 amendments, a number of controversies arose concerning whether particular examination or treatment procedures exceeded the statutory scope of chiropractic and, relatedly, the extent to which TBCE, by permitting chiropractors to perform them, was abetting unlawful encroachments upon the practice of medicine. Areas of dispute included the extent to which chiropractors could perform procedures entailing the insertion of needles into the human body, such as acupuncture and a procedure known as needle electromyography, or “needle EMG.” Simply described, needle EMG entails the insertion of needle electrodes into a patient's muscle and transmitting a small electric current as a means of evaluating nerve conductivity. Another subject of controversy was a treatment method known as manipulation under anesthesia, or “MUA.” As the term suggests, MUA entails a chiropractor's manipulation of the musculoskeletal system while the patient is under general anesthesia so as to facilitate a greater range of motion than if the patient was feeling pain or resisting.⁶

Against this backdrop, in 1995 the Legislature made several important amendments to the statutory scope of chiropractic. These included specifying that the treatment methods that defined the scope of chiropractic were “nonsurgical, nonincisive procedures, including but not limited to adjustment and manipulation, in order to improve the subluxation complex or the biomechanics of the musculoskeletal system,” and likewise excluding “incisive or surgical procedures” from the scope of chiropractic practice. See Act of May 29, 1995, 74th Leg., R.S., ch. 965, §§ 13, 18, 1995 Tex. Gen. Laws 4789, 4802–03 (current version at Tex. Occ.Code Ann. § 201.002(b)–(c)). The Legislature defined or described “incisive or surgical procedures” as follows:

In this act, “incisive or surgical procedure” includes but is not limited to making an incision into any tissue, cavity or organ by any person or implement. It does not include the use of a needle for the purpose of drawing blood for diagnostic testing.

See id. § 18, 1995 Tex. Gen. Laws...