Court Sides With TMA on Chiropractic Scope of Practice Lawsuit
Written by Editor   
Thursday, November 03, 2016 10:11 PM

In a final judgment, Travis County District Court Judge Rhonda Hurley determined that the Texas Board of Chiropractic Examiners’ (TBCE’s) rules permitting chiropractors to make medical diagnoses and perform other medical procedures exceed the chiropractic scope of practice.  By voiding the rules, Texas chiropractors can't perform vestibular-ocular-nystagmus (VON) testing. The court also specified that the definitions of “musculoskeletal system" to include "nerves," "subluxation complex" as a "neuromusculoskeletal condition," and use of the term "diagnosis" by TBCE in its rules all exceed the scope of practice as defined by the Texas Occupations Code.

TMA has a nearly 100 year history of litigation against the chiropractic board. TMA sued the board in early 2011 and emphasized to the court that allowing some chiropractors to perform VON testing puts Texans’ health in danger, because “the eyes and ears are not part of the spine or musculoskeletal system of the human body.”

TMA asked the Third Court of Appeals to uphold the trial court ruling, saying in part that: the vestibular system isn’t part of the spine or musculoskeletal system, and the Chiropractic Act doesn’t authorize chiropractors to make a “differential diagnosis” of a patient’s medical condition.

Judge Hurley’s opinion, released by the TMA, states “after considering the evidence, authorities and arguments of counsel, the Court is of the opinion and so finds that the provisions [of TBCE Rule 78.13] challenged by the TMA exceed the chiropractic scope of practice as defined by the Legislature…”

She further declares “the authorization for certain chiropractors to perform ’technological Instrumented Vestibular-Ocular-Nystagmus’ in [rule 78.13] exceeds the scope of chiropractic … and is therefore void;    the definition of ‘musculoskeletal system’ to include’ nerves’ … exceeds the scope of chiropractic … and is therefore void; the definition of ’subluxation complex’ as a ’neuromusculoskeletal condition’ … exceeds the scope of chiropractic … and is therefore void; and the use of the term ‘diagnosis’ … exceeds the scope of chiropractic … and is therefore void.”

Judge Hurley stated in an interview after her election in 2008, “I really never planned to be a judge. I always thought of myself as an advocate. When I became a mediator I realized there really were two sides to a case. As I did more mediations I started to develop a sense of what I thought should be the outcome in a case. It was then that I started thinking I might want to be judge.”  When asked “what would be your most honest warning for your prospective replacement?” Hurley responded “be decisive. Be prepared to make very difficult decisions. When necessary, like in trial, don’t be afraid to ‘pull the trigger' and rule quickly. Otherwise, take the time you need to make a decision that you will be comfortable with at the end of the day.”