By Richard H. Adler, Attorney at Law
In February 1992, we authored an article entitled “Can A Medical Doctor Evaluate The Reasonableness And Necessity Of Chiropractic Care — A Look At Washington Law.”
In that article, we stated that based upon our reading of two Washington statutes, a licensed medical doctor appears to be prohibited from engaging in the practice of chiropractic care. The medical doctor’s scope of practice statute, RCW 18.71.011, states in part that:
A person licensed under this chapter shall not engage in the practice of chiropractic as defined in RCW 18.25.005.
RCW 18.25.005, the chiropractic scope of practice statute, defined “chiropractic” to include giving a “physical examination to determine the reasonableness or necessity of chiropractic care.” These two statutes, taken together, appeared to prohibit medical doctors from giving opinions on the necessity of chiropractic care.
In June 1992, the Washington legislature approved a new scope of practice statute for chiropractors which, for the first time, permits chiropractors to adjust extremities as long as the disorder originates in the spine. RCW 18.25.005 was rewritten and the new law became effective on June 11, 1992. The statutory language we previously relied upon was modified. RCW 18.25.005 now states:
Chiropractic is the practice of health care that deals with the diagnosis or analysis and care or treatment of the vertebral subluxation complex and its effects, articular dysfunction, and musculoskeletal disorders, all for the restoration and maintenance of health care recognizing the recuperative powers of the body.
Chiropractic treatment or care includes the use of procedures involving spinal adjustments, and extremity manipulation insofar as any such procedure is complementary or preparatory to a chiropractic spinal adjustment. Chiropractic treatment also includes the use of heat, cold, water, exercise, massage, trigger point therapy, dietary advice and recommendation of nutritional supplementation except for medicines of herbal, animal, or botanical origin, the normal regimen and rehabilitation of the patient, first aid, and counseling on hygiene, sanitation, and preventive measures. Chiropractic care also includes such physiological therapeutic procedures as traction and light, but does not include procedures involving the application of sound, diathermy, or electricity.
As part of a chiropractic differential diagnosis, a chiropractor shall perform a physical examination, which may include diagnostic x-rays, to determine the appropriateness of chiropractic care or the need for referral to other health care providers. The chiropractic disciplinary board shall provide by rule for the type and use of diagnostic and analytical devices and procedures consistent with this chapter.
Chiropractic care shall not include the prescription or dispensing of any medicine or drug, the practice of obstetrics or surgery, the use of x-rays or any other form of radiation for therapeutic purposes, colonic irrigation, or any form of venipuncture.
Nothing in this chapter prohibits or restricts any other practitioner of a “health profession” defined in RCW 18.120.020(4) from performing any functions or procedures the practitioner is licensed or permitted to perform, and the term “chiropractic” as defined in this chapter shall not prohibit a practitioner licensed under chapter 18.71 RCW from performing medical procedures, except such procedures shall not include the adjustment by hand of any articulation of the spine (emphasis added).
With these amendments, we believe our original interpretation that a medical doctor is prohibited from engaging in chiropractic care and from offering opinions about the necessity of chiropractic care is strengthened.
We base this analysis on several factors. First, the statutory definition of “chiropractic” under RCW 18.25.005 includes the “diagnosis or analysis and care or treatment of the vertebral subluxation complex and its effect, articular dysfunction, and musculoskeletal disorder…” See RCW 18.25.005(1). With this amendment, only a chiropractor can give a “chiropractic diagnosis” of the “vertebral subluxation complex.”
Second, only a chiropractor can give “care or treatment of the vertebral subluxation complex.”
Third, RCW 18.25.005(3) specifically mandates that in order to reach a “chiropractic differential diagnosis” the chiropractor “shall perform a physical examination…to determine the appropriateness of chiropractic care…” It appears that only a chiropractor can determine the appropriateness of chiropractic care.
Fourth, section RCW 18.25.005(5) concerns the overlap between some functions of other licensed health care providers and chiropractors. Medical doctors are allowed to perform all tasks they are licensed to do, except “adjustment by hand of any articulation of the spine.” Clearly, adjusting the articulation of the spine is the province of chiropractors. This then begs the obvious point: if the law prohibits a medical doctor from adjusting by hand any articulation of the spine, then how can he/she determine whether an adjustment is necessary, whether the treatment regime is reasonable, whether a specific adjustment technique is appropriate, or whether the frequency and duration of care is reasonable and necessary?
Together, these new statutory provisions appear to prohibit medical doctors from examining for the necessity of chiropractic care, and, by extension, giving opinions on the question.
Obvious issues arise for the medical doctor, insurance company, chiropractor, and patient when an IME is requested to determine the necessity of chiropractic care:
Medical Doctor: The medical doctor performing an IME and offering an opinion on the necessity of chiropractic care might be exposing him/herself to malpractice risks and disciplinary action since the Uniform Disciplinary Act, RCW 18.130, defines “Unprofessional conduct” to mean “(12) Practice beyond the scope of practice as defined by law or rule.”
Insurance Company: An insurer wastes money when an IME is conducted by a medical doctor to determine the necessity of future chiropractic care because that doctor’s findings may be held to be invalid. Rather, the insurer should request an ICE (Independent Chiropractic Evaluation). If the insurer needs to have several issues addressed, then the insurer should request a multi-disciplinary panel examination that includes a chiropractor.
Treating Chiropractor: When the chiropractor learns that the insurance company is scheduling an IME, the chiropractor should seek clarification from an insurer about the purpose of the IME. If the IME is for the purpose of determining the necessity of chiropractic care and that assessment is to be done by a medical doctor, the chiropractor should object, citing the scope of practice statute. The chiropractor may also choose to report the matter to appropriate authorities, as well as recommend that his/her patient seek legal counsel immediately.
Patient: A patient can object to the insurer’s IME request. If the insurance company is unwilling to arrange a proper IME, the patient should seek legal counsel to protect his/her rights and insure she/he does not unnecessarily go through the ordeal of an IME.
Laws relating to personal injury claims can be extremely complex and subject to frequent change. An attorney’s expertise is invaluable, not only in dealing with legal-insurance matters, but also in the ability to explain and interpret the law. When we represent one of your patients, our experienced staff of highly trained professionals will be working to protect the legal rights of your patient and you as the health care provider.
Very truly yours,
ADLER GIERSCH, P.S.
Richard H. Adler
Attorney at Law