ARTICLE
At close of business on Friday, June 21, 2019, the Supreme Court of Texas breathed new hope into chiropractic maintaining the core of its identity. The Supreme Court granted a full briefing in the Texas Chiropractic Association (TCA) & Texas Board of Chiropractic Examiners (TBCE) v. Texas Medical Association (TMA) lawsuit. TMA sued TBCE regarding rules and definitions, namely attacks on the "VONT" rule and the definitions of "subluxation complex" and "musculoskeletal system." The original petition on the VONT case was initially filed in 2011. However, it was expanded in 2014 shortly after the right of chiropractors’ to diagnose was won on appeal by the TCA. After TMA expanded its VONT petition to challenge basic definitions, TCA once again filed with the courts to be an intervenor in the dispute. (That expansion also included a renewed challenge to chiropractors diagnosing, but the Third Court of Appeals overturned the bench trial decision by Travis County Judge Rhonda Hurley. The Third Court of Appeals stated that the change in amended statutory language – specifically the addition of the word 'diagnosis' – settled the question. TMA did not appeal.) Unfortunately, the Third Court of Appeals affirmed the trial court’s position that VONT, subluxation complex and musculoskeletal rules were all invalid due to their inclusion of neural interests in the absence of overt statutory language referring to nerves. "The plain language of the law includes the term 'subluxation complex,' and every reference source available presented in trial demonstrates the concept of VSC includes a neural aspect," said Tom Hollingsworth, DC, of Corpus Christi, TCA's Legal Affairs Committee Chair. “Furthermore, the law of the case states that chiropractors' examination need not be limited to the musculoskeletal system if what is being examined will directly affect the biomechanics of the spine or musculoskeletal system." TCA's Immediate Past President Devin Pettiet, DC, of Tomball, chaired TCA’s State Affairs Committee when TCA intervened in TMA's case against TBCE. "Subluxation complex had been defined for quite a while at that time,” Pettiet said. “When TBCE went on to define strictly ‘subluxation’ by the World Health Organization (which included reference to nerves), TMA stated in black and white in stakeholder input that they preferred the use of that reference. So, they endorse nerve in a chiropractic definition and turn around and sue over it in another chiropractic definition. It will be good for fresh eyes in the Supreme Court to see that.” Chad Carpenter, DC, of Boerne had only been installed as TCA President just over a week when full briefing was requested by SCOTEX. "We are going to win this case,” Dr. Carpenter said. Carpenter has been very disturbed over the anti-competitive maneuvers of the TMA in both the courts and on Capitol Hill. "Overturning the lower courts' decision on what absolutely belongs in chiropractic is just the beginning,” he added. “It is my intention that TCA move from defensive positions to more assertive activity soon.” Petitioners, both from TBCE and TCA, will separately turn in their Supreme Court briefs by July 22. TMA will file its response brief by August 12, with the chiropractic parties to offer any reply briefs by August 27. Dr. Hollingsworth cautioned, "In 'TMA-1,' we had won diagnosis and TMA appealed to SCOTEX; full briefing was requested by the Court. However, TMA's appeal was not heard. That is the position we are now in this 'TMA-2' case, but, at this stage, this was the next step needed to extend the clock a little further. We live to fight another day now.” "And fight, we will," Dr. Carpenter added.