• A
  • |
  • A
  • Text size

Scope of Practice

California Society of Anesthesiologists and California Medical Association v. Brown

204 Cal. App. 4th 390 (Cal. App. 2012)

Outcome:    Very unfavorable

Issue

The issue in this case was whether certified registered nurse anesthetists (CRNAs) can administer anesthesia in California hospitals without physician supervision.

AMA interest

The AMA believes that CRNAs should only administer anesthesia under physician supervision, as they lack the education and training to act independently.

Case summary

The Governor of California, after consultation with both the Board of Medicine and the Board of Registered Nursing, notified the Centers for Medicare & Medicaid Services that California law permits CRNAs to administer anesthesia without physician supervision.  California thereby opted out of this requirement for Medicare reimbursement purposes. 

The California Society of Anesthesiologists (CSA) and the California Medical Association (CMA) sued the governor for a judicial determination that his interpretation of California law had been incorrect.  The California Association of Nurse Anesthetists intervened in the lawsuit as an additional defendant.  On cross-motions for summary judgment, the court ruled in favor of the defendants.  It found that California law does not contain an explicit supervision requirement, and the governor had acted within his discretion.

The plaintiffs appealed to the California Court of Appeal which, affirmed, thus ruling against the medical societies.  The medical societies then asked the California Supreme Court to hear the case, but the Supreme Court denied that request.

Litigation Center/AMA involvement

The Litigation Center filed an amicus brief in support of the plaintiffs and contribute toward the expense of CMA’s appeal.

The AMA joined the American Society of Anesthesiologists (ASA) in an amicus brief to the California Court of Appeal in support of the plaintiffs.  The AMA and ASA also submitted a letter brief to the California Supreme Court, urging it to hear the case.

California Court of Appeal brief 

California Supreme Court letter brief

Colorado Medical Society v. Colorado Board of Chiropractic Examiners (Denver, Colo. Dist. Ct.)

Outcome:    Very favorable

Issue

The issue in this case was whether Colorado chiropractors should be allowed to administer various botanical and homeopathic compounds by injection.

AMA interest

The AMA believes that non-physician health care practitioners should only provide patient care in accordance with their education and training and pursuant to applicable state laws.

Case summary

The Colorado Board of Chiropractic Examiners (CBCE) adopted a regulation known as “Rule 7(c)”) that would give chiropractors the right to administer various botanical and homeopathic compounds by injection. The Colorado Medical Society (CMS) sued CBCE to prevent implementation of Rule 7(c).

Shortly after the suit was filed, CBCE delayed implementation of Rule 7(c) in order to give the Colorado Legislature an opportunity to review the new regulation and either approve or disapprove it. Subsequently, the Legislature disapproved and repealed Rule 7(c).  CMS then dismissed its lawsuit.

Litigation Center involvement

The Litigation Center has contributed financially toward the CMS legal expenses.

Colorado Medical Society v. Hickenlooper (Colo. S.Ct.)

Issue

The issue in this case is whether Colorado law allows certified registered nurse anesthetists (CRNAs) to administer anesthesia without physician supervision.

AMA interest

The AMA believes that CRNAs should practice under physician supervision, in order to protect patients.

Case summary

General care hospitals, ambulatory surgery centers, and critical access hospitals that participate in the Medicare program must satisfy conditions that the Department of Health and Human Services (HHS) finds necessary for patients’ health and safety.  As part of the Medicare participation requirements, CRNAs who administer anesthesia in general care hospitals, ambulatory surgery centers and critical access hospitals must do so under a physician’s supervision, unless the governor of the state “opts out” of such requirement by certifying that the applicable state law permits anesthesia administration without physician supervision.

The Governor of Colorado asked the Colorado Medical Board and the Colorado Board of Nursing whether the termination of physician supervision of CRNAs would be in the best interest of Colorado and would be consistent with state law.  Both boards answered affirmatively that Colorado law would allow CRNAs to practice without physician supervision, and they supported the governor’s proposal to opt-out of such requirement.  The governor then notified HHS that he had exercised the option to exempt all critical access hospitals and fourteen specifically named “rural general hospitals” from the physician supervision requirement. 

The Colorado Medical Society (CMS) and the Colorado Society of Anesthesiologists (CSA) sued to compel the governor to rescind the Medicare opt-out.  They contend that, regardless of the positions of the governor and the medical and nursing boards, the administration of anesthesia is “the practice of medicine” under the Colorado Medical Practice Act.  Also, it is a component of what the Colorado Nursing Act and the nursing board regulations define as “a designated medical function,” which a nurse can provide only under physician supervision.  The Colorado Hospital Association (CHA), the Colorado Nurses Association, and the Colorado Association of Nurse Anesthetists intervened as additional defendants.

The trial court dismissed the complaint for failure to state a cause of action. It held that the Colorado Nurse Practice Act allows CRNAs to provide health care services without physician supervision.  CMS and CSA appealed to the Colorado Court of Appeals.  However, on July 19, 2012, the Court of Appeals affirmed.  The medical societies are now appealing to the Colorado Supreme Court.


Litigation Center involvement

The Litigation Center, along with the American Society of Anesthesiologists, filed a amicus briefs in the Colorado Court of Appeals and in the Colorado Supreme Court in support of CMS and CSA.  In addition, the Litigation Center is contributing financially to the CMS lawsuit.

Colorado Court of Appeals brief

Colorado Supreme Court brief

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, 168 Wn.2d 421 (Wash. 2010)

Outcome:    Favorable

Issue
The issue in this case was whether an orthopedic surgery practice could employ physical therapists under Washington State licensure laws.

AMA interest
The AMA believes that physicians should be allowed to provide any accepted form of health care to benefit their patients, within the scope of their clinical competence. This should include the employment of allied health care professionals to assist them.

Case summary
In Washington State, as elsewhere, orthopedic surgery practices often employ physical therapists.  In this "reverse scope of practice" lawsuit, a physical therapy practice sued an orthopedic surgery practice and related parties, contending that the orthopedic surgery practice's employment of physical therapists violated Washington State licensure laws. The suit asserted the following claims:

  1. Breach of the Washington anti-rebate statute;
  2. Breach of the Washington statutes prohibiting unprofessional conduct by physicians;
  3. Breach of the Washington consumer fraud and unfair business practices statute;
  4. Breach of the Washington statutes governing professional corporations and limited liability companies;
  5. Breach of the Washington common law prohibiting the corporate practice of medicine.

Both sides moved for summary judgment.  The trial court granted summary judgment to the defendants on the fourth cause of action (pertaining to professional corporations and limited liability companies), denied summary judgment to both parties on the first three causes of action, and refused to rule on the fifth cause of action (pertaining to the corporate practice of medicine).

The trial court certified its rulings for immediate, interlocutory review and stayed further proceedings before it, pending such review.  The Washington Supreme Court then granted discretionary review of the trial court's order.

The Washington Supreme Court decided most of the issues in favor of the orthopedic surgery practice.  It held that the orthopedic surgery practice could not have violated the corporate practice of medicine doctrine, because physicians are licensed to practice medicine in all its branches and physical therapy is simply a limited aspect of the general practice of medicine.  The Supreme Court remanded the case for further adjudication, consistent with its decision.

Litigation Center involvement
The Litigation Center contributed toward the physicians' defense costs.  Also, the Litigation Center and the Washington State Medical Association filed an amicus brief to support the orthopedic surgery practice.

Washington Supreme Court brief

 

 

Connecticut State Medical Society v. Connecticut Board of Chiropractic Examiners

Issue

The issue in this contemplated lawsuit is whether the Connecticut Board of Chiropractic Examiners properly ruled that chiropractors can properly perform commercial motor vehicle driver’s license examinations.

AMA interest

The AMA believes non-physician health care practitioners should only provide patient care in accordance with their education and training and pursuant to applicable state laws.

Case summary

Under federal law, a driver of a commercial motor vehicle in interstate commerce must pass a medical examination. The medical examination, which is to include specific diagnostic tests, is to consider the following aspects of the driver’s condition: general appearance and development, head, eyes and vision, ears and hearing, throat, heart, blood pressure and cardiovascular status, lungs and respiratory function, abdomen and viscera, genital-urinary, rectal, neurological, spine, musculoskeletal, extremities, drug use, alcoholism, epilepsy, mental disorders, knowledge of warning labels on (and the side effects of) medications, and diabetes. Further, the medical examiner must be qualified under state law to preform physical examinations that would enable the examiner to certify the driver would be qualified to operate a commercial motor vehicle.

In response to an inquiry from the United States Department of Transportation, the Chiropractic Board on May 8, 2014, issued a declaratory ruling, which found that the various elements of an examination for a commercial driver’s license are taught in chiropractic schools and that performance of such examinations falls within chiropractors’ statutory scope of practice. The Connecticut State Medical Society is contemplating a lawsuit to challenge the Chiropractic Board ruling.

Litigation Center involvement

The Litigation Center will help defray the CSMS litigation expenses.

Iowa Medical Society v. Iowa Department of Public Health

831 N.W.2d 826 (Iowa 2013)

Outcome:    Very unfavorable

Issue

The issue in this case was whether advanced registered nurse practitioners (ARNPs) should be allowed to supervise fluoroscopy procedures by radiation technologists and students of radiation technology.

AMA interest

The AMA believes that non-physician health care practitioners should only provide patient care in accordance with their education and training and pusuant to applicable state laws. 

Case summary

Regulations of the Iowa Department of Public Health (IDPH) and the Iowa Board of Nursing (IBON) grant ARNPs the right to supervise fluoroscopy procedures by radiation technologists and students of radiation technology.  However, the Iowa Nursing Act only allows nurses to perform such acts as “are recognized by the medical and nursing professions … as being proper to be performed by a … nurse.”

The Iowa Medical Society (IMS) sued the IDPH and IBON to have their regulations declared invalid.  The suit contends that the medical profession does not recognize the propriety of ARNP supervision of fluoroscopy.  IMS maintains that ARNPs are neither sufficiently educated nor trained in such procedures.  Two other medical societies intervened as additional plaintiffs, and two nursing societies intervened as additional defendants.

The trial court found in favor of the plaintiffs, adopting their arguments about the impropriety, in the eyes of the medical profession, of nurse supervision of fluoroscopy.  The court enjoined enforcement of the new regulations. The Iowa Board of Nursing appealed to the Iowa Supreme Court.

On May 31, 2013, the Iowa Supreme Court, by a split decision, found in favor of the Board of Nursing. It noted that, although various medical societies and the Iowa Board of Medicine had argued that the fluoroscopy regulations would expand the nurses’ scope of practice beyond their training and competence, numerous individual physicians and several hospitals disagreed with that assessment. The medical societies, even when speaking unanimously, did not necessarily speak for the entire medical profession. Rather, the Board of Nursing had discretion to consider the various comments made regarding the regulation and decide for itself what scope of nursing practice would be reasonable. The Supreme Court reversed and remanded with directions to enter judgment for the Board of Nursing.

Litigation Center involvement

The Litigation Center contributed financially to the IMS lawsuit.

Kentucky Board of Chiropractic Examiners v. Barlow (Ky. Ct.App.)

Issue

The issue in this “reverse scope of practice” case is whether physicians in Kentucky can review chiropractic records in order to make a medical review of an automobile accident.

AMA interest

The AMA opposes government interference in the practice of medicine. Further, the AMA encourages full and unrestricted licensure for competent physicians.

Case summary

GEICO General Insurance Company underwrites automobile insurance in Kentucky. Pursuant to the Kentucky Motor Vehicle Reparations Act, its policies cover payment for reasonable medical expenses. In order to verify the charges associated with an insured’s claimed medical expenses, GEICO may hire an independent medical examiner to help investigate the claim. The medical examiner determines the necessity of the treatment, its relationship to the automobile accident, and the reasonableness of the charges. Charles Barlow, MD and Michael Best, MD are both orthopaedic surgeons, and GEICO regularly hires them to perform this type of medical review. The review includes any claims that may have been made for chiropractic care.

The Chiropractic Board learned that Drs. Barlow and Best were examining chiropractic records as part of their review of medical records for GEICO. It then sued both physicians and GEICO, seeking an injunction which would prohibit Drs. Barlow and Best from reviewing records of chiropractic treatment. The suit asserted that, to the extent they concerned chiropractors, the evaluations of Drs. Barlow and Best were in the nature of peer reviews of chiropractic treatment. As such, they violated KRS 312.200, which requires that peer review of chiropractors can only be performed by licensed chiropractors (which Drs. Barlow and Best were not).

The trial court found that Drs. Barlow and Best were not peers of the chiropractors who may have cared for the insureds. Further, they only evaluated the validity of the claims made by GEICO’s insureds, rather than the quality of care provided by the treating chiropractors. Therefore, the physician reviewers did not provide peer review within the meaning of KRS 312.200. Accordingly, the trial court entered summary judgment in favor of Drs. Barlow and Best and GEICO and against the Chiropractic Board.

The Chiropractic Board has appealed the summary judgment to the Kentucky Court of Appeals.

AMA/Litigation Center involvement

The Litigation Center and the Kentucky Medical Society filed an amicus brief in the Kentucky Court of Appeals to support Drs. Barlow and Best.

Kentucky Court of Appeals brief

Kentucky Board of Physical Therapy v. Dubin Orthopedic Center, 294 S.W.3d 421 (2009)

Outcome:    Very favorable

Issue
The issue in this case was whether a physician can bill for physical therapy services under the Kentucky Physical Therapy Act.

AMA interest
The AMA supports the right of a physician to bill under Current Procedural Terminology (CPT) criteria.

Case summary
The Kentucky State Board of Physical Therapy sued to enjoin Dubin Orthopaedic Centre, Inc. (whose sole shareholder is Dr. Dubin) from billing under the CPT codes specific to physical therapy services, as those services were not provided by a licensed physical therapist. The Board claimed it is illegal under the Kentucky Physical Therapy Act for a non-physical therapist—even a physician—to bill for these services. While the suit was pending, the Kentucky Board of Medical Licensure issued an advisory opinion finding that physicians do have the right to bill for physical therapy services. On cross-motions for summary judgment, the trial court found in favor of Dubin Orthopaedic. The Board of Physical Therapy appealed.

The Kentucky Court of Appeals reversed the trial court's order and directed the trial court to enjoin Dubin Orthopaedic from using CPT codes for physical therapists in his billing for physical therapy services. The appellate court noted that a licensed physician may utilize treatment modalities that are the same as, or similar to, those provided by a licensed physical therapist. Nevertheless, the appellate court found that the statute at issue mandated that no person other than a licensed physical therapist, even a licensed physician, can submit a bill that describes his services as physical therapy services.

Dubin Orthopaedic then appealed to the Kentucky Supreme Court, which reversed the Court of Appeals, holding for Dubin Orthopaedic.  It found that the Kentucky Physical Therapy Act was not intended to prevent physicians from using the proper CPT code to describe their services.

Litigation Center involvement

The AMA joined with the Kentucky Medical Association in the filing of amicus curiae briefs in the Kentucky Court of Appeals and the Kentucky Supreme Court on behalf of Dubin Orthopaedic.

Kentucky Court of Appeals brief

Kentucky Supreme Court brief 

Medical Society of Virginia v. Niamtu (Richmond, Va., Cir. Ct.)

Outcome:     Very unfavorable

Issue

The issue in this case was whether maxillofacial surgeons, who were licensed as dentists but not as physicians, could perform plastic surgery and dermatological procedures beyond the teeth, gum, and jaws and could hold themselves out as “doctors of dental surgery.”

AMA interest

The AMA believes that non-physician health care practitioners should only provide patient care in accordance with their education and training and pursuant to applicable state laws.

Case summary

The Medical Society of Virginia (MSV) brought this scope of practice lawsuit against a group of maxillofacial surgeons. The suit alleged that the defendants, who are licensed as dentists but not as physicians, were performing plastic surgery and dermatological procedures on body structures beyond the teeth, gum, and jaws. Moreover, the suit alleged, the defendants advertised themselves as “doctors”, without modifying the description to show they are “doctors of dental surgery”. Such actions allegedly constituted the unlawful practice of medicine, in violation of the Virginia statutes.

In response to the MSV complaint, the defendants said that, notwithstanding the Virginia statutes, they are as well qualified to perform these procedures as are licensed physicians. The defendants counterclaimed, alleging a conspiracy by MSV and others to harm their business and an abuse of legal process.

After the suit was filed, the Virginia legislature passed a law that broadened the permissible scope of dental practice and created certification procedures for dentists who wished to avail themselves of that expanded scope. Both the complaint and the counterclaim were voluntarily dismissed, with prejudice.

Litigation Center involvement

The Litigation Center contributed toward a portion of the litigation expense.

Missouri State Medical Association v. State of Missouri, 256 S.W.3d 85 (Mo. 2008)

Outcome:    Very unfavorable

Issue
The issue in this case was whether a Missouri statute allowing for the practice of midwifery, the enactment of which was effected by a one-sentence insertion buried within another bill without proper notice of its contents, is constitutional.

AMA interest
The AMA believes that non-physician health care practitioners should provide only that health care that is appropriate to their education, training, and experience.

Case summary
Shortly before the Missouri General Assembly was to vote on a lengthy bill relating to health insurance, a state senator slipped in a provision that would allow midwifery practice. The midwifery section of the bill did not include provisions for state licensure or other regulation. The implications of the amendment were not made known to the rest of the legislators, who passed the amendment along with the rest of the bill. The governor signed the bill, which was then to become a law.

The Missouri State Medical Association (MSMA), along with the Missouri Association of Osteopathic Physicians and Surgeons, the Missouri Academy of Family Physicians, and the St. Louis Metropolitan Medical Society, sued the State of Missouri for a declaratory judgment and an injunction against enforcement or implementation of the new law. The complaint asserted that the midwifery law would be unconstitutional because (a) the bill leading up to its passage violated Mo. Const. art. III, § 21, which provides: "[N]o bill shall be so amended in its passage through either house as to change its original purpose," and (b) the bill also violated Mo. Const. art. III, § 23, which provides: "No bill shall contain more than one subject which shall be clearly expressed in its title."

The trial court found the purported law unconstitutional, for the reasons plaintiffs had advocated, and it enjoined its enforcement. The State of Missouri appealed to the Missouri Supreme Court. Unfortunately, on June 24, 2008, the Missouri Supreme Court reversed the trial court on the ground that the plaintiffs-medical societies lacked standing. The Court therefore did not reach the constitutional issue.

Litigation Center involvement

The Litigation Center contributed toward the MSMA litigation expenses and filed an amicus curiae brief to support the MSMA's position in the Missouri Supreme Court.

Missouri Supreme Court brief.

North Carolina State Board of Dental Examiners v. Federal Trade Commission (S.Ct.)

719 F.3d 359 (4th Cir. 2013)

Also under Antitrust

Issue

The issue in this case is whether a scope of practice decision of a state licensure board fell outside the federal antitrust laws under the “state action doctrine.”

AMA interest

The AMA believes that state medical boards should have the authority to regulate the practice of medicine.

Case summary

The North Carolina State Board of Dental Examiners (NCSBDE) was an agency of the State of North Carolina, charged with regulating the practice of dentistry in North Carolina.  Under the North Carolina Dental Practice Act, it was unlawful to practice dentistry in North Carolina without a dental license.  The Dental Practice Act further provided that a person is deemed to be practicing dentistry if that person “[r]emoves stains, accretions or deposits from the human teeth”.

Beginning in approximately 2003, non-dentists began providing teeth whitening services at mall kiosks, spas, retail stores, and salons.  Subsequently, the NCSBDE issued cease and desist letters to non-dentist teeth whitening service providers and distributors of teeth whitening products and equipment.  In addition, the NCSBDE sent letters to mall owners and operators urging them not to lease space to non-dentist teeth whitening providers.

The FTC enforcement staff brought an administrative action against the NCSBDE, claiming that the NCSBDE, through its issuance of the cease and desist letters, was violating Section 5 of the FTC Act, 15 USC § 45.  The FTC found that, since a majority of the members of the NCSBDE were practicing dentists and not employees of the state, for purposes of the antitrust laws the NCSBDE should be deemed a private person rather than part of a state government.  Because the State of North Carolina did not actively supervise its actions, the NCSBDE was subject to the federal antitrust laws.

The FTC issued its own cease and desist order against the NCSBDE.  The FTC order prohibited the NCSBDE from directing non-dentists to cease and desist from providing teeth whitening services, unless the NCSBDE communications included language the FTC had pre-approved.  The FTC did not decide whether or under what circumstances teeth whitening may constitute the practice of dentistry under the North Carolina Dental Practice Act. 

The NCSBDE has appealed the FTC Order to the United States Court of Appeals for the Fourth Circuit.  However, the Fourth Circuit denied the NCSBDE petition. It held that the NCSBDE cease and desist letters were unauthorized and, since a majority of the members of the NCSBDE were themselves practicing dentists and were elected by other practicing dentists, the NCSBDE should be deemed an organization of private persons. Accordingly, the state action doctrine did not apply, and the NCSBDE could not restrain competition through the cease and desist letters.

NCSBDE petitioned the Fourth Circuit for rehearing, but that petition was denied.  NCSBDE has petitioned the Supreme Court for certiorari, and that petition was granted.

Litigation Center involvement

The Litigation Center filed an amicus brief in the Fourth Circuit in support of the NCSBDE.  The Litigation Center also filed an amicus brief in support of the NCSBDE petition for certiorari.  In addition, the Litigation Center, along with several other health care organizations, filed an amicus brief in support of the NCSBDE on the merits in the Supreme Court.

United States Court of Appeals for the Fourth Circuit brief

United States Supreme Court brief in support of petition for certiorari

United States Supreme Court brief in support on the merits

Selective Insurance Co. v. Rothman, 414 N.J. Super. 331 (N.J. App. Div. 2010)

Outcome:    Favorable

Issue

The issue in this case was whether a physician assistant, while acting under a physician’s supervision, should be allowed to perform needle electromyography (EMG) testing.

AMA interest

The AMA believes that health care professionals should provide patient care in accordance with their level of education and training and in accordance with applicable state laws.

Case summary

The lawsuit arose out of an automobile accident involving an insured of Selective Insurance Company of America.  The insured, who suffered bodily injuries as a result of the accident, was examined and treated by a neurologist, Arthur C. Rothman, M.D.

As part of the medical examination, Dr. Rothman’s physician assistant, Bracha Mazin, performed a needle EMG test on the insured’s right arm.  The New Jersey Board of Medical Examiners licensed Ms. Mazin as a physician assistant.  The insured assigned his insurance benefits to Dr. Rothman.  The bill included a charge of $568.93 for Ms. Mazin’s needle EMG study. 

Selective Insurance refused to pay the charge, asserting that New Jersey law restricted performance of the needle EMG examinations to licensed physicians and therefore Ms. Mazin was legally unauthorized to perform the test.  The dispute was referred to an arbitrator, pursuant to a statute requiring that such insurance questions be arbitrated.  The arbitrator found that Dr. Rothman was entitled to be paid for Ms. Mazin’s services.  Selective Insurance appealed to the Superior Court of New Jersey, Law Division, asserting that the arbitrator had erroneously applied the law to the facts.

The trial judge, when interpreting the New Jersey Medicine and Surgery Act, conflated the scope of practice of health care practitioners with limited licenses with the scope of practice of health care practitioners allowed to practice medicine and surgery in all its branches.  Therefore, the judge held that the Medicine and Surgery Act permitted physician assistants to perform needle EMG testing.  Selective Insurance appealed that ruling.

The Appellate Division adopted arguments of the MSNJ/Litigation Center amicus brief and reversed the trial court ruling. 

Litigation Center involvement

The Litigation Center along with the Medical Society of New Jersey, filed an amicus curiae brief to seek reversal of the trial court ruling.  The brief focused on the legal issue of statutory interpretation, rather than questions of proper medical practice.  The Litigation Center and MSNJ took this unusual step because, if the Appellate Division were to affirm based on the rationale of the trial court, the case could call into question the scope of limited health care licenses for many allied health care professionals.

Superior Court of New Jersey brief.

South Carolina Orthopaedic Association v. South Carolina Board of Physical Therapy

(S.C. Ct. App.)

Issue

The issue in this “reverse scope of practice” case is whether South Carolina physicians can legally employ physical therapists.

AMA interest

The AMA opposes government interference in the practice of medicine, and the AMA encourages full and unrestricted licensures for competent physicians.

Case summary

In 2006, the South Carolina Supreme Court interpreted a section of the South Carolina Physical Therapists Act (PT Act), S.C. Code Ann. § 40-45-110(A)(1), to prohibit physician employment of physical therapists. Sloan v. South Carolina Board of Physical Therapy Examiners, 636 S.E.2d 598. The present case is an attempt either to obtain an outright reversal of the Sloan decision or, perhaps somewhat contradictorily, to expand the Sloan holding in order to make a legislative repeal more likely.

Under the name Joseph v. South Carolina Department of Labor, Licensing and Regulation, a physical therapist and two orthopaedic surgeons, with support from the South Carolina Orthopaedic Association, sued the South Carolina Physical Therapy Board for a declaratory judgment. The plaintiffs’ nine count complaint sought to establish either (1) Sloan was wrongly decided and should be overruled, or (2) Sloan, if correctly decided, should be extended. Regarding the second point, they argued that, assuming Sloan was to stand, § 40-45-110(A)(1) of the PT Act should prohibit physical therapists themselves from employing other physical therapists, just as the Supreme Court had held that it prohibited physicians from employing physical therapists.

On a motion to dismiss, the trial court held that it could not overrule Sloan, and it granted summary judgment to the defendant on the counts seeking such relief. However, it denied the motion to dismiss the remaining counts, which sought to expand the Sloan holding to employment of one physical therapist by another. Following the trial court ruling on the motion to dismiss/motion for summary judgment, the South Carolina Physical Therapy Association and three individual physician therapists intervened as additional defendants. The parties filed cross-motions for summary judgment on the remaining counts. 

On April 21, 2014, the trial court ruled in favor of the defendants on all outstanding motions. It held that the PT Act was intended to prohibit excessive referrals to physical therapists from physicians but not to prevent such referrals from one physical therapist to another. There was therefore no reason why one physical therapist could not employ another physical therapist.

Litigation Center involvement

The Litigation Center is contributing to the plaintiff’s legal expenses.

Tennessee Medical Association v. Tennessee Board of Dentistry

2001 Tenn. App. LEXIS 528 (Tenn. App. 2001), 2003 Tenn. LEXIS 226 (Tenn. S.Ct.)

Outcome:     Very favorable

Issue

The issue in this case was whether maxillofacial surgeons, who were licensed as dentists but not as physicians, could perform aesthetic and reconstructive surgery beyond the teeth, gum, and jaws.

AMA interest

The AMA believes that non-physician health care practitioners should only provide patient care in accordance with their education and training and pursuant to applicable state laws.

Case summary

The Tennessee Medical Association sued the Tennessee Board of Dentistry in a scope of practice dispute. The dentistry board tried to allow maxillofacial surgeons to perform examinations and procedures that exceeded the statutory mandate of caring for “teeth…jaws or associated structures.” The board allowed dentists to perform aesthetic and reconstructive surgery on all parts of the head and neck, including on the eyelids, nose, and ears.

TMA won in the trial court, but the case was appealed. The Tennessee Court of Appeals affirmed, and the Tennessee Supreme Court declined to accept discretionary review.

Litigation Center involvement

The Litigation Center contributed toward the cost of defending the appeal.

Texas Medical Association v. Texas Board of Chiropractic Examiners (Dist.Ct of Travis Cnty.)

375 S.W.3d 464 (Tex. App. 2012)

Issue

The issue in this case is whether a Chiropractic Board “Scope of Practice Rule,” which purported to allow chiropractors to perform needle electromyography (needle EMG), manipulate the body under anesthesia (MUA), and diagnose the biomechanical condition of the spine and musculoskeletal system, is valid.

AMA interest

The AMA believes that non-physician health care practitioners should only provide patient care in accordance with their education and training and in accordance with applicable state laws.

Case summary

The Texas Chiropractic Board passed a Scope of Practice Rule, codified at 22 Tex. Admin. Code § 75.17, which would have allowed chiropractors to perform needle EMG and MUA. In addition, the Scope of Practice Rule defined chiropractic to include “[a]n analysis, diagnosis, or other opinion regarding the biomechanical condition of the spine or musculoskeletal system, including, but not limited to [various examples of medical/chiropractic procedures].” § 75.17(d). TMA sued the Chiropractic Board, alleging that the Scope of Practice Rule exceeded the authority allowed the Chiropractic Board under Texas law and under the Texas Constitution. The Texas Chiropractic Association intervened in the lawsuit on the side of the Chiropractic Board.

Based on its interpretation of the Texas Chiropractic Act, the trial court granted summary judgment in favor of TMA, but without addressing TMA’s constitutional argument. The chiropractors appealed, and the Texas Court of Appeal affirmed that aspect of the summary judgment which prohibited chiropractors from performing needle EMG and MUA. However, it reversed the trial court § 75.17(d) ruling, concerning chiropractic “diagnosis.”

The Court of Appeals noted that the Chiropractic Act defines chiropractic practice as “objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body. Tex. Occ. Code Ann. § 201.002(b)(1). The Court of Appeals then held that “[t]he text and format” of the Scope of Practice Rule limited chiropractors to diagnoses within the statutory definition. It did not reach the constitutional question and remanded for further consideration of that issue.

TMA sought an appeal to the Texas Supreme Court regarding the validity of § 75.17(d), but the Supreme Court declined to hear the case. TMA will now be pressing its constitutional arguments regarding § 75.17(d) in the trial court on remand.

On September 13, 2013, TMA filed an amended complaint.  The case is set for trial in September 2014.

Litigation Center involvement

The Litigation Center contributed to the Texas Medical Association legal expenses.

Texas Medical Association v. Texas State Board of Examiners of Marriage and Family Therapists

(Tex.Ct.App.)

Issue

The issue in this case is whether regulations that allegedly expand the scope of practice of marriage and family therapists into psychiatry are valid.

AMA interest

The AMA believes that non-physician healthcare practitioners should provide only that health care that is appropriate to their education, training and experience.

Case summary

The Texas Medical Association (TMA) sued the Texas State Board of Examiners of Marriage and Family Therapists and two of its officers on account of regulations that would allegedly expand the scope of practice of marriage and family therapists into psychiatry. Specifically, TMA contested the validity of a regulation that would allow marriage and family therapists to provide a diagnostic assessment “which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the International Classification of Diseases (ICD)” and another regulation that would allow marriage and family therapists to provide interactive therapy via the telephone or internet. The Texas Association of Marriage and Family Therapists intervened as an additional defendant.

All parties moved for summary judgment, and the trial court granted each side’s motion in part and denied it in part. The court held the regulation allowing diagnostic assessments based on DSM and ICD to be invalid, but the regulation allowing interactive telephone or internet therapy to be valid.

Both sides appealed to the Texas Court of Appeals, where briefing has been completed and oral argument was heard on October 16, 2013.

Litigation Center involvement

The Litigation Center made a financial contribution to support the Texas Medical Association lawsuit.

Texas Orthopaedic Association v. Texas State Board of Podiatric Medicine

254 S.W.3d 714 (Tex.App. 2008)

Outcome:    Very favorable

Issue
The issue in this case was whether the Texas State Board of Podiatric Medicine (TSBPM) could define the "foot" as including the ankle and various soft tissue.

AMA interest
The AMA believes that non-physician health care practitioners should only provide health care that is appropriate to their education, training, and experience.

Case summary

This "scope of practice" suit challenged the validity of a regulation adopted by TSBPM. The Texas podiatric statute restricts podiatric care to medical conditions concerning the "foot." Under the TSBPM regulation, the "foot" was defined to include "the ankle and the tibia and fibula in their articulation with the talus...inclusive of all soft tissues...that insert into the tibia and fibula in their articulation with the talus."

The Texas Orthopaedic Association (TOA) and the Texas Medical Association (TMA) sued to declare the TSBPM regulation inconsistent with the Texas podiatric statute. Without stating reasons for the decision, the trial judge upheld the contested regulation. TOA and TMA appealed that ruling.  The appellate court reversed the ruling of the trial court, holding that TSBPM had exceeded its authority when issuing its definition of the "foot."  TSBPM petitioned the Texas Supreme Court to hear the case, but the Texas Supreme Court denied the TSBPM petition.

 
Litigation Center involvement

The Litigation Center contributed to the TOA legal expenses. The Litigation Center also filed amicus curiae briefs, along with the American Academy of Orthopaedic Surgeons and the Texas chapters of several specialty medical societies, to support TOA and TMA in the Texas Court of Appeals and the Texas Supreme Court.

Texas Court of Appeals brief

Texas Supreme Court brief

Wisconsin Academy of Ophthalmology v. State of Wisconsin Optometry Examining Board (Dane County, Wisc. Cir. Ct.)

Outcome:    Neutral

Issue
The issue in this case was whether optometrists should be permitted to perform laser eye surgery.

AMA interest
The AMA believes that non-physician health care practitioners should provide health care that is appropriate to their education, training, and experience.

Case summary
The Optometry Examining Board of the State of Wisconsin (Board), without notice or opportunity for public comment, ruled that Wisconsin optometrists could perform laser eye surgery. Immediately thereafter, some optometrists started to perform the procedure.

The Wisconsin Academy of Ophthalmology, the American Academy of Ophthalmology and the Wisconsin Medical Society sued the Board for declaratory and injunctive relief. In essence, the plaintiffs alleged that: use of lasers on the eye constitutes surgery; numerous delicate and difficult ophthalmologic surgeries are performed with use of a laser; there are contraindications and potential complications associated with laser procedures; and ophthalmologists receive extensive medical training while optometrists do not. Plaintiffs contended that the Board action was invalid because laser surgery exceeds the scope of permissible practice by optometrists, as defined by state statute. Plaintiffs further contended that the Board ignored statutory rule making procedures.

Shortly thereafter, the Board rescinded its ruling and announced its intent to promulgate future rules allowing laser surgery by optometrists. By amended complaint, with the Litigation Center now added as a plaintiff, the plaintiffs sought a judicial declaration that defendant's rescission of its earlier ruling still exceeded the Board's authority. The remaining relief requested was substantially similar to that of the initial complaint. The amended complaint also sued four individual optometrists, who allegedly were performing laser eye surgery.

The court denied a motion by the Wisconsin Attorney General to dismiss the Wisconsin Optometry Board from the case for lack of ripeness. The board then withdrew its notice of intent to promulgate a rule concerning laser surgery by optometrists.

The plaintiffs moved for summary judgment and the defendants subsequently cross-moved for summary judgment in their favor. The court denied the plaintiffs' motion, granted the defendants' motion, and dismissed the ophthalmologists' lawsuit. Although the court did not explain its reasoning, it may have felt that, in light of the decision by the Optometry Board to rescind its earlier ruling, which had originally prompted the case, the lawsuit had become moot.

Litigation Center involvement
The Litigation Center joined the lawsuit as an additional plaintiff in the amended complaint.