VONT Case: Even Though...
Written by Chris G Dalrymple, DC, FICC   
Tuesday, December 11, 2018 05:38 PM

On November 21, 2018, the Third District Court of Appeals in Austin issued a ruling in the appeal of the “VONT case.”   “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 affirm the remaining portions of the court’s judgment.

Even though the founder of Chiropractic, D.D. Palmer, before the 1900s,  stated:

“I founded Chiropractic on Osteology, Neurology, and Functions—bones, nerves and the manifestations of impulses”

even though it appears that the first Doctor of Chiropractic in Texas who had studied and graduated from D. D. Palmer’s School of Chiropractic in 1898 authored the medical text Osteopathy Illustrated; Neurology; Neuropathy; even though the earliest advertisments of doctors of chiropractic included the claim that they were “nerve specialists”, the court has seen fit to exclude nerves from the purview of chiropractic.

Even though the court notes that:

“during the trial, the TCA specifically argued that Chiropractors are not treating the entirety of the nervous system, but rather that TBCE’s use of ‘associated’ nerves in its definitions reasonably restricted the degree to which DC’s have legitimate clinical interest and authority,”

and even though the court notes

“the term subluxation complex remains in the Chiropractic Act and though it is undefined, the ‘plain language’ is to be the interpretation unless otherwise defined within a statute.”

And, even though in every exhibit offered as evidence at trial, whether from the Association of Chiropractic Colleges, the World Health Organization, or Dorland’s Medical Dictionary (and even the American Medical Association’s definition of chiropractic manipulative treatment), there is a neural component communicated in "subluxation complex,” the court has seen fit to exclude nerves from the purview of chiropractic.

The Evidence

Here is the court’s evidence and reasoning, excerpted from their opinion:

“Appellants argue that nerves are associated with subluxation complexes and are an integral part of chiropractic treatment and that correction of biomechanical problems affects nerves, which means that the Rule’s references to ‘nerves’ or 'neuro' are consistent with the statutory scope of chiropractic.”

We first consider appellants’ arguments related to the Rule’s references to nerves. … the Rule defines ‘musculoskeletal system’ as the ‘system of muscles and tendons and ligaments and bones and joints and associated tissues and nerves that move the body and maintain its form’ and '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/or neuro-physiological reflections of these articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.'” 

“It is the Rule’s references to ‘nerves,’ 'neuromusculoskeletal,' and 'neuro-physiological' that were declared by the trial court to exceed the scope of chiropractic.  Appellants argue that the practice of chiropractic has always involved nerves because chiropractic treats subluxations, which are dysfunctions in the joints, usually the spine, that ‘cause nerve interference.' A chiropractor looks to all of a patient’s symptoms, including pain—a signal carried by the nervous system—to determine whether the patient has a subluxation. And, in treating the subluxation, the nervous system is necessarily involved, both during treatment and in the ‘benefits of treatment,' when pain is reduced or eliminated. Appellants further note that because nerves are involved in the body’s subconscious ability to locate and orient itself, a subluxation that distorts a patient’s equilibrium signals can be treated through chiropractic, and thus chiropractic treatment seeks to influence ‘neurophysiological function.' Because nerves are associated with subluxation complexes and are an integral part of chiropractic treatment, appellants argue, it is proper for the Rule’s definition of ‘subluxation complex’ to include a ‘nerve component' and for the definition of 'musculoskeletal system' to include nerves.”

As is often the case, however, “organized medicine” seeks to undermine other professions at every turn. In this instance the court notes: 

“TMA, on the other hand, notes that the Legislature specified that chiropractors may analyze and treat ‘the biomechanical condition of the spine and musculoskeletal system,’ which it argues impliedly excludes the nervous system." 

“TMA asserts that there is no ‘commonly accepted definition of musculoskeletal system that includes nerves.”

Even though the court notes that:

“experts agreed that nerves are associated with the musculoskeletal system, causing the musculoskeletal system to move and transmitting pain signals when the system is damaged or a subluxation is present.”

 and 

“experts agreed that nerves ‘innervate’ muscles and that pain signals sent through the nervous system indicate issues in other systems."  

and even though the court, itself notes that:

“The Board’s witnesses emphasized a ‘functional’ view of the body’s systems, as opposed to the more formal 'anatomical standpoint' that TMA’s witnesses seemed to take.”

it has seen fit to exclude nerves from the purview of chiropractic.

The court also reported on its “findings of fact” which include:

  • “‘neurology’ is the scientific study of the nervous system and the diseases that affect it."

  • “Biomechanics means the study of mechanical laws and their application to living organisms."

  • “[The Board] intends for the term 'diagnosis' to mean more than the analysis, examination and evaluation of the biomechanical condition of the spine or musculoskeletal system. [The Board] intends the term to mean and include the diagnosis of neurological diseases and disorders, among others.”

  • “The human body is composed of a number of 'systems' … Most of these systems have been recognized as such since the late 1600s. 

  • "The muscular system is the collection of organs that are called muscles and that are attached to bones. The skeletal system is the bones. For convenience, the two systems generally are described together as the ‘musculoskeletal system'.”

  • "The nervous system is the collection of organs that sense or perceive the outside world, process that information and deliver the appropriate signals to the muscular system for action. There is no commonly accepted definition of musculoskeletal system that includes nerves.” 

  • “Nerves are not part of the muscle system and they are not part of the skeletal system, including the spine."

  • “The use of the term ‘neuro’ in the definitions of musculoskeletal system and subluxation complex is intended to authorize licensed chiropractors to diagnose neurological diseases and disorders."

  • “Licensed chiropractors who do not have a certification of a ‘diplomate' in chiropractic neurology diagnose nervous system diseases and disorders in their patients."

Not content to limit just the nervous system, the court reported:  

“One expert defines that ‘biomechanics' are the 'intrinsic principles of the structures of the human body that relate to mechanical forces… In his opinion, the 'only way the nervous system affects the biomechanics is by signaling muscles to contract and thereby creating a force in those muscles.' He also explained that various organs of the body can be ‘associated’ with more than one system, using as an example a bone, which has components of both the skeletal system (the hard, mineral portion) and the system that generates blood cells (the bone marrow). [The expert] testified that similarly, there are nerves in muscles, tendons, ligaments, and spinal discs and, thus, that on some level, certain nerve tissues are considered a ‘part' of tendons, ligaments, and muscles. However, he drew a distinction between a nerve being apartof a muscle and considering such nerves to be part of the muscular or musculoskeletalsystem. He said, ‘I’ve never heard people talk about the nervous system as being part of the musculoskeletal system in any context until this case.'”

and 

“The conventional view,” of the skeletal system the expert reports was “the vertebra, the spine, and the bones that are connected to that, directly or indirectly” (the bones in the ear, called ossicles, and the hyoid bone, located in the neck between the jaw and the larynx, are not part of the conventional view of the skeletal system). [The “expert”] believes that ‘musculoskeletal’ is a combination term—that is there is a skeletal system (comprised of bones) and a muscular system (comprised of skeletal i.e., striated muscle).” He further testified that there are both ‘functional’ and ‘anatomical’ systems, depending on how the systems are being discussed or viewed, and said that the Board was taking the anatomical term ‘musculoskeletal’ system and ‘put[ting] it into a functional context,’ giving a new and 'idiosyncratic' meaning to a long-standing term."

Organized medicine's expert fears that “the Board’s ‘functional’ use might lead to confusion because only a specific group would perceive the term in the way the Board was using it.” 

“The way most people refer to it is musculoskeletal or nervous. He further testified that the nervous system is not part of the muscular system, although ‘it has to be there for it, just like the cardiovascular system has to be there for it, just like the lymphoid system has to be there for it, but it’s not a part of it.” Nor “was the nervous system part of the musculoskeletal system. 

“Another witness testified similarly,” the court reports, “that the term ‘neuromusculoskeletal’ is not a medical term of art, despite its being found in a common medical dictionary, …He agreed that nerves are affected by chiropractic care in that the treatment may give the patient some pain relief, but insisted that chiropractic treatment does not ‘treat’ nerves.”

Dr. Kenneth Thomas testified that chiropractors need to understand the nervous system in order to treat back pain and that treatment of a subluxation and surrounding tissues also involves the nerves in the area. He said:

“[T]here’s no way for me to deliver an adjustment, let’s say, to a joint for the biomechanical problem without affecting the nerve.” He testified that modern definitions of subluxation generally refer to ‘associated nerves.' He also read aloud the World Health Organization’s definition of ‘subluxation complex' as the '[t]heoretical model and description of the motion segment dysfunction which incorporates the interaction of pathological changes in nerve, muscle, ligamentous, vascular and connective tissue.”

Even though the court notes:

“The evidence is clear that in treating a subluxation causing pain, the chiropractor seeks to relieve pain, which necessarily has an effect on the nervous system. However, the fact that nerves are affected by disorders in or treatment of the musculoskeletal system does mean that the nervous system or the nerves themselves fall within the scope of chiropractic. In other words, a chiropractor’s consideration of pain signals in evaluation or treatment does not mean that the chiropractor is examining or treating nerves or the nervous system. Indeed, the experts agreed that the consideration of signals sent through the nervous system has always been a part of chiropractic practice. Further, this Court already noted in Chiropractic Examiners II that the Legislature did not intend to restrict chiropractic examinations solely to the musculoskeletal system and spine, explaining that a chiropractor may examine other parts or systems of the body if such examination ‘will assist in analyzing or evaluating the biomechanical condition of the spine or musculoskeletal system.'”  [emphasis added]

 “The term ‘neuromusculoskeletal system’, the court observed, "is a combination of the nervous system, the muscular system, and the skeletal system. Chiropractic, however, is statutorily limited to evaluation of the ‘biomechanical condition of the spine and musculoskeletal system’ and to nonsurgical procedures 'to improve the subluxation complex or the biomechanics of the musculoskeletal system.' Although consideration of other bodily systems may be necessary to evaluate the biomechanical condition of the spine and the musculoskeletal system, that does not mean that the definition of ‘musculoskeletal system’ should be expanded to include associated nerves or that 'subluxation complex' should be defined as a condition extending beyond the musculoskeletal system. Based on our review of the evidence put forth before the trial court, we hold that sufficient evidence supports the court’s findings related to the Rule’s reference to nerves and the ‘neuromusculoskeletal system’ in its definition of ‘musculoskeletal system' or 'subluxation complex.' We overrule appellants’ issues related to the Rule’s definitions.”

Even Though

Even with the evidence presented and the over 120 year history of the profession, the court has seen fit to exclude “nerves” from the purview of chiropractic. 


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