VONT Case: The History
Written by Chris G. Dalrymple, DC, FICC   
Tuesday, December 11, 2018 04:53 PM

Recent History

On November 21, 2018, the Third District Court of Appeals in Austin issued a ruling in the appeal of the “VONT case”, stating 

we have overruled appellants’ issues related to the Rule’s references to nerves and its provision related to VONT. We have sustained their issues related to the Rule’s use of the word 'diagnosis.' We therefore reverse the trial court’s judgment as far as it declares that the use of 'diagnosis' in section 78.13(d) exceeds the scope of chiropractic practice and is void. We affirm the remaining portions of the court’s judgment,” 

This refers to the portion of the rules:

  • allowing certain chiropractors to perform VONT,
  • the definition of ‘musculoskeletal system’ as including the nerves; and
  • the definition of "subluxation complex" as a "neuromusculoskeletal condition". 

The VONT case originated after an inquiry to the Texas Board of Chiropractic Examiners (TBCE) resulted in a what became known as the VONT Rule that in October 2010 established under what conditions and required post-doctoral credentials a Doctor of Chiropractic may engage in what they described as Vestibulo-Ocular-Nystagmus Testing (VONT).  

A district court judge ruled against the chiropractic parties in September 2016 on all four issues:  VONT is beyond chiropractic scope in Texas, the TBCE defiition of musculoskeletal system is invalid due to its inclusion of “associated nerves,” the TBCE definition of subluxation complex is invalid due to it being described as a neuromusculoskeletal condition, and diagnosis of such is beyond the scope of practice for Texas chiropractors.  The case was appealed.

The appeals court decision has upheld the decision that nerve issues are out of bounds for chirorpactic and found the rules regarding VONT, musculoskeletal system, and subluxation complex to all be invalid.  The court, however, determined once again that the use of the word diagnosis was valid for use by chiropractic doctors.

History

Texas law places regulation of the practice of medicine in the hands of the Texas Medical Board,” says the Third Court of Appeals in their decision.  “The practice of medicine is defined 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 someone who claims to be a doctor or who charges money or other compensation for such services.”  

The court notes that “the Legislature has exempted certain professions from the Medical Practice Act and has enacted other boards and statutory schemes to govern those professions. Licensed chiropractors …are among those specifically exempted.”

In the court's own words, the history of these lawsuits brought by TMA includes:

“In a prior lawsuit brought in 2006, appellee the Texas Medical Association (“TMA”) sued, complaining that certain aspects of the Rule, including its use of the word ‘diagnosis … exceeded the statutory scope of chiropractic practice. …we concluded at that time that: …the bottom line is that  [the rule] limits chiropractors to diagnoses regarding “the biomechanical condition of the spine and musculoskeletal system' as required by the statutory scope of chiropractic … It does not, by its plain language, allow them to render diagnoses that do not involve the statutory scope of chiropractic. “

"In October 2010, while Chiropractic Examiners I was pending, the Board amended the Rule, and TMA filed the underlying suit in 2011, complaining about the new provision that would allow chiropractors who undergo additional training to perform Technological Instrumented Vestibular-Ocular-Nystagmus Testing (“VONT”).  The trial court granted summary judgment in favor of TMA, the Board appealed. … We reversed the trial court’s granting of summary judgment.”

“TMA amended its petition to also challenge the provisions of the Rule that (1) define the musculoskeletal system as the “system of muscles and tendons and ligaments and bones and joints and associated tissuesand nervesthat move the body and maintain its form”; (2) define subluxation complex as a “neuromusculoskeletal condition that involves an aberrant relationship between two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in the biomechanical and/orneuro-physiological reflections of these articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.”

“The cause returned to the trial court, which eventually signed a final judgment declaring void the following portions of the Rule defining the chiropractic ‘scope of practice’: (1) the portion allowing certain chiropractors to perform VONT; (2) the definition of ‘musculoskeletal system’ as including nerves; (3) the definition of ‘subluxation complex’ as a ‘neuromusculoskeletal condition’; and (4) the use of the term 'diagnosis'."

Next installment: VONT Case: Even Though...


Source:  http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=978b38ea-e724-458a-9e1c-147d64b62d17&MediaID=f65db553-4521-4a98-a65b-0d8d0ae040db&coa=%22+++this.CurrentWebState.CurrentCourt+++%40%22&DT=Opinion&fbclid=IwAR0oMegW_Aaa6PHKIPajfiHdELQOeCSHxwZ4HAACel11vg4aO0w3JzWGOWk