A Texas Supreme Court Ruling on Evaluation and Diagnosis
Written by Editor   
Monday, March 06, 2017 02:28 PM

News bite:  In a Texas Supreme Court ruling for a different profession, the court seems to take a position favorable to the chiropractic argument in the numerous cases involving TMA and TBCE. The court notes that the Medical Association contends that the term ‘diagnosis’ is distinct from an ‘evaluation.’ Other statutes, however, refer to the terms demonstrating that an evaluation necessarily includes a diagnosis or identification of the thing being evaluated. “Chiropractic practice includes the use of ‘objective or subjective means to analyze, examine, or evaluate …’ without using the term diagnosis. … But it then provides that a chiropractic patient’s records include records “of the identity, diagnosis, evaluation, or treatment of a patient by a chiropractor.” These provisions indicate that the chiropractor’s authority to “analyze, examine, or evaluate” the patient includes the authority to diagnose the patient….  We … conclude that the Medical Association makes too much of the rule’s use of the word ‘diagnostic.'”


On February 24, 2017, the Texas Supreme Court rendered its ruling in a lawsuit between the Texas State Board of Examiners of Marriage and Family Therapists and the Texas Medical Association (TMA or the medical association). Certain interpretations in this ruling will certainly come into play in the chiropractic profession’s own lawsuit winding its way thorough the courts.

Over twenty years ago, the Texas State Board of Examiners of Marriage and Family Therapists (the Therapists Board) adopted a rule that permits licensed marriage and family therapists (MFTs) to provide “diagnostic assessment . . . to help individuals identify their emotional, mental, and behavioral problems.” Nearly ten years ago, the Texas Medical Association filed this suit asserting that the rule is invalid because the Texas Occupations Code does not authorize MFTs to provide diagnostic assessments. The Medical Association asserts that, subject to a few exceptions, only those who are licensed to practice medicine may provide a diagnostic assessment. 

In part, the court’s ruling states: “The Medical Association contends that within the context of the Occupations Code the term ‘diagnosis’ refers to a service that is necessarily distinct from an 'evaluation.' In support, the Association notes that several of the Code’s provisions refer to the two terms separately and often in the disjunctive. …Other Code provisions, however, refer to the terms in a manner that demonstrates that an evaluation necessarily includes a diagnosis or identification of the thing being evaluated. For example, the Code provides that chiropractic practice includes the use of ‘objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body,’ without using the term diagnosis. … But it then provides that a chiropractic patient’s records include records “of the identity, diagnosis, evaluation, or treatment of a patient by a chiropractor.” These provisions indicate that the chiropractor’s authority to “analyze, examine, or evaluate” the patient includes the authority to diagnose the patient, such that the patient’s records include records of the ‘diagnosis . . . of a patient by a chiropractor.  We … conclude that the Medical Association makes too much of the rule’s use of the word ‘diagnostic.'”

In ruling reviews the history of this lawsuit and much of it is similar to the numerous TMA vs. TBCE lawsuits that our profession has been dealing with for over a decade.  For example the TMA alleged that by permitting MFTs to provide diagnostic assessments, the rule grants MFTs authority that the Therapists Act does not grant and that the Texas Medical Practice Act reserves for medical licensees.   

In this case the supreme court noted that: “we conclude that … If, as the Association contends, a ‘diagnostic assessment’ is … beyond the scope of the Therapists Act and is the ‘practice of medicine,’ then every diagnostic assessment would constitute the practice of medicine.”

The court notes that “we must apply their common, ordinary meaning [of words] unless a contrary meaning is apparent from the statute’s language….To determine a statutory term’s common, ordinary meaning, we typically look first to their dictionary definitions and then consider the term’s usage in other statutes, court decisions, and similar authorities.”  They continue: “the Medical Association contends that certain terms carry special or unique definitions in the Occupations Code. The Association argues both that the undisputed definition of ‘diagnose’ is the ‘commonly accepted’ definition as appears in Webster’s Dictionary and that ‘the medical definition of diagnosis’ is the applicable definition here. It does not explain the difference between the two definitions, but it implies that the medical definition always refers to diseases whereas the common definition only sometimes does. …The statutory definition of the practice of medicine, however, itself refers to diagnosis as involving a disease or a disorder.”

“The Medical Association also argued that the term diagnosis has a ‘meaning unique to the code.' But the Medical Association does not explain what the ‘unique' meaning of diagnosis is in the Occupations Code. We note that the Code uses the terms ‘medical diagnosis’ and ‘working diagnosis,' neither of which the Code defines."

“The Medical Association asserts that we cannot construe the Therapists Act to permit any diagnostic assessments because doing so would create an impermissible conflict between the Therapists Act and the Medical Practice Act, which defines the practice of medicine as including the diagnosis of medical disorders and prohibits practicing medicine without a medical license.  As ‘a matter of public policy,’ the Medical Practice Act protects the public interest by recognizing that ‘the practice of medicine is a privilege and not a natural right,’ and it is necessary to ‘regulate the granting of that privilege and its subsequent use and control.’ The Medical Association argues that construing the [statutory acts of others allowing use of the word diagnose, allows them to] engage in the practice of medicine—undermines this important policy concern and threatens the public interest.”

“As the Medical Association acknowledges,” the court notes, “the Occupations Code expressly permits some healthcare professionals who do not have a medical license to make particular types of diagnoses. And the Code also expressly exempts certain health professions from its requirements altogether.” 


Source: http://www.txcourts.gov/media/1437252/150299.pdf