UPDATE: Texas Judge Finally Rules on Diagnosis Issue

This section is compiled by Frank M. Painter, D.C.
Send all comments or additions to:     Frankp@chiro.org

FROM:   Dynamic Chiropractic ~ 9–17–2010

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Put yourself in the position of a practicing doctor of chiropractic in Texas right about now (if you are one, this is easy).   With the Texas Medical Board and Texas Medical Association breathing down your neck, threatening to take away your right to diagnose (or even use the word diagnosis in your scope-of-practice act, claiming that by medical definition, the word is reserved for medical doctors and doctors of osteopathy), a Texas judge has ruled in your favor - depending on your perspective.

While Judge Stephen Yelenosky rejected the TMB/TMA reasoning that diagnosis does not apply to non-MD/DO providers, he did render the chiropractic scope-of-practice act null and void as currently written.   By all accounts, any rewrite will need to update the current language in the act, which does not include the word diagnosis (but according to the Texas Chiropractic Association and others, clearly implies it by stating that DCs can "analyze, examine and evaluate").   It is unclear whether the revised scope will need to satisfy Judge Yelenosky's prior suggestion that chiropractic diagnosis should be limited to "the biomechanical condition of the spine and the musculoskeletal system."

So, as a DC, whether in Texas or elsewhere, should you consider this a major defeat, a big victory (all things considered), or somewhere in between?   As of press time the Texas Board of Chiropractic Examiners and Texas Chiropractic Association, co-defendants in the suit filed by the medical organizations in May 2006, are reserving official comment on the judge's ruling and what actions they will take from this point forward.   However, DC has received input from more than a few Texas chiropractors that suggest Judge Yelenosky's decision can be looked at in either a "glass half empty" or "glass half full" light.

Consider that the Texas medical front did not get what it wanted either: exclusive use of the term and application of diagnosis.   And while the chiropractic practice act will now need to be revisited, it provides an opportunity for the chiropractic community to ensure appropriate diagnostic scope not previously clarified in the act.   As emphasized by Drs. Greg Carter and Kevin Raef, TCA legislative chair and coordinator of governmental affairs, respectively, in our Sept. 23 article ("Texas DCs Fighting a Modern-Day Goliath; Texas Chiropractors Defend Their Right to Diagnose as the Texas Medical Association Backs Them Into a Corner",)   the hope is that revisions to the 1989 practice act will ensure chiropractors can diagnose in the most expansive form possible.   According to Drs. Carter and Raef, any revised act would reply on language from other states' practice acts to create a more universal statute beneficial to Texas DCs and to chiropractors in states with similar issues involving their practice scope, particularly relative to the mention and application of diagnosis.

Note that with the judge's decision, his November 2009 ruling concerning manipulation under anesthesia and needle electromyography (also alleged to be medical acts in the suit) take effect, barring appeal; Judge Yelenosky previously ruled that these 2 procedures fall outside of chiropractic scope of practice.

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NOTE:   We have reported extensively about this Texas case in the past:

1. TMA v TBCE--TRIAL UPDATE
   Chiro.Org Blog ~ July 21st, 2010

2. AMA's “Contain and Eliminate” Tactics Are Alive and Well
   Chiro.Org Blog ~ July 15th, 2010

3. A Constitutional Challenge to DCs Diagnosing – What This Means for Health Care
   Chiro.Org Blog ~ April 27th, 2010

4. Live and Let Live?
   Chiro.Org Blog ~ March 24th, 2010

5. Organized Medicine Attempts To Deny Chiropractors Right To Diagnose in Texas
   Chiro.Org Blog ~ February 4th, 2010

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