Failure to Diagnose or Refer, Problem?

December 20, 2002

Vern;

I couldn't access that specific link. could you direct me on their site to the report you're talking about?

Roy

--

Roy Steinberg DC DABCO

Steinberg Consulting Services Inc.

14136 NE 32nd Place

Bellevue WA 98007

425-883-8783: voice

425-556-0616: fax

From: " Vern Saboe DC " <las@...>

Date: Fri, 20 Dec 2002 06:04:12 -0800

Subject: " Failure to Diagnose or Refer, Problem? "

Dear Colleagues:

As a consultant to NCMIC and OUM malpractice carriers I'd like any comments you are willing to offer relative to the statements made on this " CBC Malpractice Report. "

CBS is the malpractice carrier that we see in Dr. Terry Rhomberg's mag all the time and supposedly is geared toward " subluxation based chiropractors. "

I would be interested to know how many have or do not have a problem with statements made in this article? Go to;

http://www.cbsmalpractice.com/report/article/nov2702.htm

Vern Saboe, DC.,DACAN.,FICC.,DABFE

President Chiropractic Association of Oregon

Delegate American Chiropractic Association

Albany, Oregon

OregonDCs rules:

1. Keep correspondence professional; the purpose of the listserve is to foster communication and collegiality. No personal attacks on listserve members will be tolerated.

2. Always sign your e-mails with your first and last name.

3. The listserve is not secure; your e-mail could end up anywhere. However, it is against the rules of the listserve to copy, print, forward, or otherwise distribute correspondence written by another member without his or her consent, unless all personal identifiers have been removed.

December 20, 2002

try this I left a letter off :

http://www.cbsmalpractice.com/report/articles/nov2702.htm

"Failure to Diagnose or Refer, Problem?"

Dear Colleagues:As a consultant to NCMIC and OUM malpractice carriers I'd like any comments you are willing to offer relative to the statements made on this "CBC Malpractice Report." CBS is the malpractice carrier that we see in Dr. Terry Rhomberg's mag all the time and supposedly is geared toward "subluxation based chiropractors."I would be interested to know how many have or do not have a problem with statements made in this article? Go to;http://www.cbsmalpractice.com/report/article/nov2702.htmVern Saboe, DC.,DACAN.,FICC.,DABFEPresident Chiropractic Association of OregonDelegate American Chiropractic AssociationAlbany, OregonOregonDCs rules:1. Keep correspondence professional; the purpose of the listserve is to foster communication and collegiality. No personal attacks on listserve members will be tolerated.2. Always sign your e-mails with your first and last name.3. The listserve is not secure; your e-mail could end up anywhere. However, it is against the rules of the listserve to copy, print, forward, or otherwise distribute correspondence written by another member without his or her consent, unless all personal identifiers have been removed.

December 20, 2002

Re: "Failure to Diagnose or Refer, Problem?"

Vern:

re: "Since subluxation listings are not considered a "medical diagnosis" you will find it easier to defend yourself in court."

and if you don't diagnose a condition what is your defense?

This kind of thinking puts chiropractors in the same league as taxicab drivers "I wasn't responsible for what they did or where they went, I just took them to where they wanted to go".......

Another problem I have with the simplistic notion of not making a Dx other than "vsc", is that by the very basic claim that 'interrupted nerve flow' produces 'death, disease and dying', is the corollary that once you Dx "vsc" then doesn't that mean you are obligated to ferret out the related symptoms associated with that nerve level? And in the ANS it is virtually impossible to draw a clear line from symptom to the vsc, ala Meric system, etc.....

so 'vsc' is no better than 'headache' or 'arthritis' or any other garbage pail general term. "VSC" includes the findings of changes in bodily functioning, doesn't the exam demand we list those? And while I use 'vsc' at times appropriate, I haven't seen a rational presentation that 'vsc' is reasonable in each and every patient we all see.........

regards for your continuing efforts,

J. Pedersen, DC

January 6, 2003

"Failure to Diagnose or Refer, Problem?"

Dear Colleagues:As a consultant to NCMIC and OUM malpractice carriers I'd like any comments you are willing to offer relative to the statements made on this "CBC Malpractice Report." CBS is the malpractice carrier that we see in Dr. Terry Rhomberg's mag all the time and supposedly is geared toward "subluxation based chiropractors."I would be interested to know how many have or do not have a problem with statements made in this article? Go to;http://www.cbsmalpractice.com/report/article/nov2702.htmVern Saboe, DC.,DACAN.,FICC.,DABFEPresident Chiropractic Association of OregonDelegate American Chiropractic AssociationAlbany, OregonOregonDCs rules:1. Keep correspondence professional; the purpose of the listserve is to foster communication and collegiality. No personal attacks on listserve members will be tolerated.2. Always sign your e-mails with your first and last name.3. The listserve is not secure; your e-mail could end up anywhere. However, it is against the rules of the listserve to copy, print, forward, or otherwise distribute correspondence written by another member without his or her consent, unless all personal identifiers have been removed.

January 6, 2003

Dear Mike:

To

diagnose, in Oregon, is the law. If a malpractice carrier chooses to create a

nondiagnostic form of chiropractic for the purposes of shielding its clients

from malpractice claims that is a risk that they will have to take. Yes,

Wisconsin and Washington may have agreed to limit practitioners to subluxation

based treatment, but the diagnostic responsibility remains unchanged. In Oregon

you may choose to complete the basic GP style diagnostics at the office of a chiropractor,

or the doctor may refer this out to other practitioners. Still the diagnosis

must be made by someone. To simply identify subluxation and adjust it is not

acceptable in Oregon.

It shouldn’t

be acceptable anywhere. Today I have a woman patient with low back pain and

peripheral neuropathy. Tonight she is in an alcohol treatment program. Today I

have a patient undergoing a needle biopsy in Boise, Idaho to determine the

diagnosis of a breast mass found at her annual physical in this office. She

also presents with thoracic subluxation. Yes these clients are referred outside of the chiropractic profession,

but for what reasons? It certainly is not a matter of shielding my practice

from legal battles. It is for the good of the patient. Chiropractors who wish

to believe that they only find ‘em, fix ‘em and forget ‘em are not correcting

subluxation one. Do you think for one minute that that alcohol treatment center

is going to fix that woman’s subluxation? Do you think that the breast cancer

specialist even gives one moment’s notice to the patient’s back discomforts? And

really doctors do you think that all your subluxated patients really only need

to be adjusted and their cancer, alcoholism, bronchitis, etc. will be

irrelevant? Of course not.

So why are

we seriously considering the plausibility of placing diagnosis outside of the

chiropractic paradigm? There is only one reason that fits all comers: to make

it legally safer to practice. While there may be some ability to hide out in

this Clintonian closet, I am certain that it will require as many, if not more,

lawyers than we would need to defend the status quo.

Furthermore,

I believe that there is ample scientific evidence to validate the premise that

a subluxation cannot be cured by an adjustment alone. The adjustment may restore

the nerve pathways, but until the conditions leading to the subluxation are

diagnosed and health is restored on all levels, the subluxation will persist, reflecting

the continuing milieu of the nervous system that came before the subluxation. Only a chiropractor can intentionally

bring the patient to a healthy state, by definition a state that is free of

subluxation yes, but also a state of optimum health. There is no way that a chiropractor

can adjust away an iron deficiency, an alcoholic stupor, a dysfunctional

pregnancy, etc. I have yet to meet the chiropractor who lives or dies by the

adjustment alone. “One cause one cure” is unsupportable by any method of stable

thinking. The cause is life and the journey through it. Even BJ had medical

care.

Additionally,

the idea that a subluxation can be completely corrected is as absurd a thought

as reversing the aging process itself. Chiropractors do not work to adjust

subluxations, they work to care for people. These people age and get sick and

die. There is no cure for this. There is no adjustment for this. This is life.

Why must we as a profession attempt to candy-coat this by creating little legal loopholes to hide

within? We are caring for people during their lives, while we attempt to adjust

and prevent their subluxations -- which will recur with age. There is no “big

idea” that is so big that is absolves the chiropractor from this. To diagnose

is merely an attempt to understand the process, it is not a legal exercise.

Yes, as chiropractors we see the process from the neural viewpoint, but the

process we view remains universal. To put on some legal horse-blinders and see

only spinal subluxation is to see a result, not the cause. Who would take a

journey by trusting only the dirt of path in front of them? You must look up at

the sky and the terrain, smell the air and feel the breeze, in short diagnose

and assess the environment within which you are traveling.

Finally, Dr.

Mike, I respect the reality that many chiropractors wish to relinquish the

responsibility to diagnose, and some wish to only adjust. It is my opinion that

they may be good adjustors, but many of their patients, even those like the

ones in my office today who will be referred to other practitioners, will remain

subluxated from the neglect of the conditions that led to the chronic nature of

the subluxation. The only hope for an impasse here is if the subluxation

specific nondiagnosing adjustor can make sure that a diagnosis is made elsewhere

and then re-interpreted by the adjustor during the course of care. The chiropractor

must make sure that the patient understands that they are responsible to

prevent recurring subluxation by exercise, diet, relaxation, and an occasional

trimming of the toenails.

Willard

-----Original

Message-----

From: Mike Riemhofer D.C.

[mailto:drmike@...]

Sent: Monday, January 06, 2003

2:29 PM

Oregon DCs

Subject: Fw:

" Failure to Diagnose or Refer, Problem? "

-----

Original Message -----

From: Mike Riemhofer

D.C.

Vern Saboe DC

Sent: Sunday, January 05,

2003 11:10 PM

Subject: Re:

" Failure to Diagnose or Refer, Problem? "

Vern et

al,

I am a

subluxation based chiropractor. I am not a WCA or ICA member or CBS

insured. I present the following in the hopes of creating a

broader understanding of the " to diagnose or not to

diagnose " question from a subluxation-based perspective... to move

from dogma to dialogue...

A

couple of thoughts on the diagnosis issue...

1.

Historically, I believe the issue has been at least partly legal,

going back to BJ's time. BJ would testify in behalf of a

chiropractor accused of practicing medicine without a license. BJ would

argue " no diagnosis was made " . In the absence of a

diagnosis the chiropractor would be found " not guilty " .

Any

chiropractic history buffs out there can confirm or clarify?

2.

If a named-diagnosed entity responds to chiropractic - subluxation correction,

is the correct diagnosis: subluxation or the named entity?

Here is

some additional background information that I believe sheds more light on the

issue:

First,

a Point-Counterpoint from The Chiropractic Journal, September 2000. Both

the point and the counter point are written by attorneys.

Second, a

WCA Position Paper on chiropractic diagnosis and referral. I found the legal

decisions interesting.

Third,

from the ICA's: The Chiropractic Choice: Chiropractic Diagnosis: The

Issue Must Be Faced, Fred Barge, DC.

Fourth,

I would recommend the book: The Role of Chiropractic by Leonard Rutherford

DC. Rutherford practiced in Eugene, Oregon for 31 years. He

was involved with the ICA from 1941 to 1971and served as

President of the ICA from 1964 to 1971. It's an interesting read

historically both nationally and as applies to Oregon, many

legal/court case decisions are cited.

Hope

you find it interesting... P.S. The red highlights in the following

are mine...

1986-2002 The Chiropractic Journal

Position Paper on

chiropractic diagnosis and referral

In order to maintain a clear and unique

identity for chiropractic, eliminate or reduce the public's confusion as to

the role of a D.C. in health care, and protect doctors of chiropractic from

malpractice lawsuits, it is critical to establish a common understanding

and agreement about the extent of a doctor of chiropractic’s duty to

diagnose and refer.

It is the position of the World Chiropractic

Alliance that:

1) While training and statute may allow the

chiropractor broad diagnostic scope, chiropractors may also elect to limit

their practice and diagnostic scope to the detection, characterization and

care of vertebral subluxations, and determining the safety and

appropriateness of chiropractic care.

2) As stated in the Council on Chiropractic

Practice, Clinical Guideline # 1:

Vertebral Subluxation in Chiropractic Practice, " In the

course of patient assessment and the delivery of chiropractic care, a

practitioner may encounter findings which are outside his/her professional and/or

legal scope, responsibility, or authority to address. The chiropractor has

a responsibility to report such findings to the patient, and record their

existence. Additionally, the patient should be advised that it is outside

the responsibility and scope of chiropractic to offer advice, assessment or

significance, diagnosis, prognosis, or treatment for said findings and

that, if the patient chooses, he/she may consult with another provider,

while continuing to have his/her chiropractic needs addressed. "

3) There exists a wide variety of health

care practitioners, systems of health care and cultural overlays that

effect how the public utilizes health care services. While every

practitioner should be sensitive to this wide variety of cultural and

individual practices, it is not possible to dictate a particular class of

provider that a patient must see for evaluation of unusual findings. This

must be done on a case by case basis and must be a decision the patient is

empowered to make.

To arrive at this position, the World

Chiropractic Alliance relied on fundamental chiropractic teachings and

definitions, the Council on Chiropractic Practice Guidelines, Association

of Chiropractic Colleges Position Paper No. 1, literature from the World

Health Organization, state scope-of-practice statutes, and numerous legal

decisions. The following court cases are of particular importance:

People v. Beno, D.C. (422 Mich. 293. 373 N.W.2d 544, 1985). In this case,

the court determined that the " practice of chiropractic " referred

to the health care discipline that deals with " the nervous system and

its relationship to the spinal column and its interrelationship with other

body systems. " This included diagnosis, including spinal analysis, to

determine the existence of spinal subluxations or misalignments that

produce nerve interference, indicating the necessity for chiropractic care.

The Supreme Court of Michigan held,

" We do not believe the Legislature intended to authorize chiropractors

to engage in general diagnostic techniques. Had such a result been

intended, it could have been clearly stated. "

Kerkman v. Hintz (142 Wis.2d 404, 4178 N.W.2d 795, 1988). This case

pointed out the distinct differences between chiropractic and medical

practice. The Court very clearly defined the extent of a chiropractor's

duty to diagnose: " In summary, we

hold that a chiropractor has a duty to (1) determine whether the patient

presents a problem which is treatable through chiropractic means; (2)

refrain from further chiropractic treatment when a reasonable chiropractor

should be aware that the patient's condition will not be responsive to

further treatment; and (3) if the ailment presented is outside the scope of

chiropractic care, inform the patient that the ailment is not treatable

through chiropractic means. "

Goldstein v. Janusz (582 N.W.2d 78, 218 Wis.2d 683). The Court of Appeals of

Wisconsin relied on Kerkman when it ruled, " Chiropractors have no duty to recognize medical

problems. " It added that " to do so would require chiropractors to

make medical determinations which, under Wisconsin law, they are not

licensed to make. " The Court further

noted, " Although chiropractors may take and analyze x-rays, they only

do so for diagnostic or analytical purposes in the practice of

chiropractic. "

People v. Bovee. D.C. (285 N.W. 2d 53, Mich.Ct.App. 1979). In this case, a D.C. was found guilty of practicing medicine

without a license after dispensing non-prescription medicines for colds and

other ailments. He also took throat cultures and urine samples and implied

to patients that he was diagnosing and treating specific health conditions. The Michigan statute defines chiropractic practice as

including " Diagnosis, including spinal analysis, to determine the

existence of spinal subluxations or misalignments that produce nerve

interference, indicating the necessity for chiropractic care. " The judge's ruling made it clear that a chiropractic diagnosis

in Michigan involves determining subluxation and nerve interference, not

the identification of specific medical diseases or conditions.

Treptau v. Beherens Spa,

Inc., (20 N.W.2d 108,

247 Wis.438). A chiropractor examined and treated a patient's foot using

bandages and diathermy. The Wisconsin Supreme Court stated,

" Plaintiffs do not claim there was malpractice on the part of the

defendant while Beherens was engaged in the practice of chiropracty (sic)

by chiropractic manipulation or adjustments of the spine. Instead,

plaintiffs contend there was malpractice when he and his associates went

beyond the practice of chiropracty (sic) and entered into the general field

of the practice of medicine...in so far as there was thus an invasion of

the general field of that practice, the methods thus used by defendant's

employees in diagnosis and treatment were subject to the rules applicable

to the practice of medicine and surgery. " The court relied on Kuechler v. Volgmann (192 N.W. 1015, 180

Wis. 238, 242-43), which held, " When a chiropractor assumes to

diagnose and treat disease he must exercise the care and skill in so doing

that is usually exercised by a recognized school of the medical

profession. "

Spunt v. Fowinkle (572 S.W.2d 259, Tenn.Ct. App., 1978). This case

involved a doctor of chiropractic who offered medical procedures such as

drawing blood and taking Pap smears. Tennessee statute defines chiropractic

as " the science of palpating, analyzing and adjusting the

articulations of the human spinal column and adjacent tissues by

hand. " It also states, " Any person shall be regarded as

practicing medicine within the meaning of this chapter who shall treat, or

profess to treat, operate on, or prescribe for any physical ailment or

physical injury to or deformity of another. " The court pointed to the

doctor's intent as a critical factor in the case, saying that there was,

technically, nothing in the law to prohibit the doctor from doing a Pap

smear or drawing blood. If either or both of these procedures had been for

the purpose of detecting subluxations or determining a chiropractic program

of care for subluxation correction, they would have been acceptable. But since the doctor's purpose was clearly to diagnose disease,

he had crossed the line separating chiropractic from medicine.

1986-2002 The Chiropractic Journal

From the ICA's: The Chiropractic Choice,

Editorial by Fred Barge, DC:

January 7, 2003

AMEN!

Sunny Kierstyn

January 7, 2003

Dear Mike

Accepting the degree Doctor of Chiropractic brings with it both rights and responsibilities. To avoid diagnosis is not performing the duties of your degree. To fail to diagnose with the thought of avoiding responsibility is in my opinion malpractice. If you say you refer out the medical problems. How do you decide there is one without physical examination and at least forming a DDX?

Rodney

"Failure to Diagnose or Refer, Problem?"

Dear Colleagues:As a consultant to NCMIC and OUM malpractice carriers I'd like any comments you are willing to offer relative to the statements made on this "CBC Malpractice Report." CBS is the malpractice carrier that we see in Dr. Terry Rhomberg's mag all the time and supposedly is geared toward "subluxation based chiropractors."I would be interested to know how many have or do not have a problem with statements made in this article? Go to;http://www.cbsmalpractice.com/report/article/nov2702.htmVern Saboe, DC.,DACAN.,FICC.,DABFEPresident Chiropractic Association of OregonDelegate American Chiropractic AssociationAlbany, OregonOregonDCs rules:1. Keep correspondence professional; the purpose of the listserve is to foster communication and collegiality. No personal attacks on listserve members will be tolerated.2. Always sign your e-mails with your first and last name.3. The listserve is not secure; your e-mail could end up anywhere. However, it is against the rules of the listserve to copy, print, forward, or otherwise distribute correspondence written by another member without his or her consent, unless all personal identifiers have been removed.

January 7, 2003

Well stated by Dr's Stienberg and Bertrand.

P. Thille, D.C., FACORedmond, Oregon

Re: "Failure to Diagnose or Refer, Problem?" Vern et al, I am a subluxation based chiropractor. I am not a WCA or ICA member or CBS insured. I present the following in the hopes of creating a broader understanding of the "to diagnose or not to diagnose" question from a subluxation-based perspective... to move from dogma to dialogue... A couple of thoughts on the diagnosis issue... 1. Historically, I believe the issue has been at least partly legal, going back to BJ's time. BJ would testify in behalf of a chiropractor accused of practicing medicine without a license. BJ would argue "no diagnosis was made". In the absence of a diagnosis the chiropractor would be found "not guilty". Any chiropractic history buffs out there can confirm or clarify? 2. If a named-diagnosed entity responds to chiropractic - subluxation correction, is the correct diagnosis: subluxation or the named entity? Here is some additional background information that I believe sheds more light on the issue: First, a Point-Counterpoint from The Chiropractic Journal, September 2000. Both the point and the counter point are written by attorneys. Second, a WCA Position Paper on chiropractic diagnosis and referral. I found the legal decisions interesting. Third, from the ICA's: The Chiropractic Choice: Chiropractic Diagnosis: The Issue Must Be Faced, Fred Barge, DC. Fourth, I would recommend the book: The Role of Chiropractic by Leonard Rutherford DC. Rutherford practiced in Eugene, Oregon for 31 years. He was involved with the ICA from 1941 to 1971and served as President of the ICA from 1964 to 1971. It's an interesting read historically both nationally and as applies to Oregon, many legal/court case decisions are cited. Hope you find it interesting... P.S. The red highlights in the following are mine... © Copyright 1986-2002 The Chiropractic Journal Position Paper onchiropractic diagnosis and referral In order to maintain a clear and unique identity for chiropractic, eliminate or reduce the public's confusion as to the role of a D.C. in health care, and protect doctors of chiropractic from malpractice lawsuits, it is critical to establish a common understanding and agreement about the extent of a doctor of chiropractic¹s duty to diagnose and refer. It is the position of the World Chiropractic Alliance that: 1) While training and statute may allow the chiropractor broad diagnostic scope, chiropractors may also elect to limit their practice and diagnostic scope to the detection, characterization and care of vertebral subluxations, and determining the safety and appropriateness of chiropractic care. 2) As stated in the Council on Chiropractic Practice, Clinical Guideline # 1: Vertebral Subluxation in Chiropractic Practice, "In the course of patient assessment and the delivery of chiropractic care, a practitioner may encounter findings which are outside his/her professional and/or legal scope, responsibility, or authority to address. The chiropractor has a responsibility to report such findings to the patient, and record their existence. Additionally, the patient should be advised that it is outside the responsibility and scope of chiropractic to offer advice, assessment or significance, diagnosis, prognosis, or treatment for said findings and that, if the patient chooses, he/she may consult with another provider, while continuing to have his/her chiropractic needs addressed." 3) There exists a wide variety of health care practitioners, systems of health care and cultural overlays that effect how the public utilizes health care services. While every practitioner should be sensitive to this wide variety of cultural and individual practices, it is not possible to dictate a particular class of provider that a patient must see for evaluation of unusual findings. This must be done on a case by case basis and must be a decision the patient is empowered to make. To arrive at this position, the World Chiropractic Alliance relied on fundamental chiropractic teachings and definitions, the Council on Chiropractic Practice Guidelines, Association of Chiropractic Colleges Position Paper No. 1, literature from the World Health Organization, state scope-of-practice statutes, and numerous legal decisions. The following court cases are of particular importance: People v. Beno, D.C. (422 Mich. 293. 373 N.W.2d 544, 1985). In this case, the court determined that the "practice of chiropractic" referred to the health care discipline that deals with "the nervous system and its relationship to the spinal column and its interrelationship with other body systems." This included diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care. The Supreme Court of Michigan held, "We do not believe the Legislature intended to authorize chiropractors to engage in general diagnostic techniques. Had such a result been intended, it could have been clearly stated." Kerkman v. Hintz (142 Wis.2d 404, 4178 N.W.2d 795, 1988). This case pointed out the distinct differences between chiropractic and medical practice. The Court very clearly defined the extent of a chiropractor's duty to diagnose: "In summary, we hold that a chiropractor has a duty to (1) determine whether the patient presents a problem which is treatable through chiropractic means; (2) refrain from further chiropractic treatment when a reasonable chiropractor should be aware that the patient's condition will not be responsive to further treatment; and (3) if the ailment presented is outside the scope of chiropractic care, inform the patient that the ailment is not treatable through chiropractic means." Goldstein v. Janusz (582 N.W.2d 78, 218 Wis.2d 683). The Court of Appeals of Wisconsin relied on Kerkman when it ruled, "Chiropractors have no duty to recognize medical problems." It added that "to do so would require chiropractors to make medical determinations which, under Wisconsin law, they are not licensed to make." The Court further noted, "Although chiropractors may take and analyze x-rays, they only do so for diagnostic or analytical purposes in the practice of chiropractic." People v. Bovee. D.C. (285 N.W. 2d 53, Mich.Ct.App. 1979). In this case, a D.C. was found guilty of practicing medicine without a license after dispensing non-prescription medicines for colds and other ailments. He also took throat cultures and urine samples and implied to patients that he was diagnosing and treating specific health conditions. The Michigan statute defines chiropractic practice as including "Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care." The judge's ruling made it clear that a chiropractic diagnosis in Michigan involves determining subluxation and nerve interference, not the identification of specific medical diseases or conditions. Treptau v. Beherens Spa, Inc., (20 N.W.2d 108, 247 Wis.438). A chiropractor examined and treated a patient's foot using bandages and diathermy. The Wisconsin Supreme Court stated, "Plaintiffs do not claim there was malpractice on the part of the defendant while Beherens was engaged in the practice of chiropracty (sic) by chiropractic manipulation or adjustments of the spine. Instead, plaintiffs contend there was malpractice when he and his associates went beyond the practice of chiropracty (sic) and entered into the general field of the practice of medicine...in so far as there was thus an invasion of the general field of that practice, the methods thus used by defendant's employees in diagnosis and treatment were subject to the rules applicable to the practice of medicine and surgery." The court relied on Kuechler v. Volgmann (192 N.W. 1015, 180 Wis. 238, 242-43), which held, "When a chiropractor assumes to diagnose and treat disease he must exercise the care and skill in so doing that is usually exercised by a recognized school of the medical profession." Spunt v. Fowinkle (572 S.W.2d 259, Tenn.Ct. App., 1978). This case involved a doctor of chiropractic who offered medical procedures such as drawing blood and taking Pap smears. Tennessee statute defines chiropractic as "the science of palpating, analyzing and adjusting the articulations of the human spinal column and adjacent tissues by hand." It also states, "Any person shall be regarded as practicing medicine within the meaning of this chapter who shall treat, or profess to treat, operate on, or prescribe for any physical ailment or physical injury to or deformity of another." The court pointed to the doctor's intent as a critical factor in the case, saying that there was, technically, nothing in the law to prohibit the doctor from doing a Pap smear or drawing blood. If either or both of these procedures had been for the purpose of detecting subluxations or determining a chiropractic program of care for subluxation correction, they would have been acceptable. But since the doctor's purpose was clearly to diagnose disease, he had crossed the line separating chiropractic from medicine. © Copyright 1986-2002 The Chiropractic Journal From the ICA's: The Chiropractic Choice, Editorial by Fred Barge, DC:

January 7, 2003

Rodney,

Well stated. Yesterday a seemingly healthy young male patient presented with thoracolumbar pain. With out a diagnosis I could have treated him until a kidney fell out, before referring him with kidney infection for a medical condition? Certainly he had muscle spasms and subluxations, a chiropractic condition. I could have gotten another 5 visits out of him before he became grossly febrile and the proper diagnosis would have been apparently something other than a subluxation. How would you feel it you were the patient?

Ted

Ted Forcum, DC, DACBSP, FICC, CSCSBack In Motion Sports Injuries Clinic, LLC11385 SW Scholls Ferry RoadBeaverton, Oregon 97008ph 503.524.9040

On Tue, 7 Jan 2003 07:10:11 -0800 "Dr. Cross" <rcross@...> writes:

Dear Mike

Accepting the degree Doctor of Chiropractic brings with it both rights and responsibilities. To avoid diagnosis is not performing the duties of your degree. To fail to diagnose with the thought of avoiding responsibility is in my opinion malpractice. If you say you refer out the medical problems. How do you decide there is one without physical examination and at least forming a DDX?

Rodney

"Failure to Diagnose or Refer, Problem?"

Dear Colleagues:As a consultant to NCMIC and OUM malpractice carriers I'd like any comments you are willing to offer relative to the statements made on this "CBC Malpractice Report." CBS is the malpractice carrier that we see in Dr. Terry Rhomberg's mag all the time and supposedly is geared toward "subluxation based chiropractors."I would be interested to know how many have or do not have a problem with statements made in this article? Go to;http://www.cbsmalpractice.com/report/article/nov2702.htmVern Saboe, DC.,DACAN.,FICC.,DABFEPresident Chiropractic Association of OregonDelegate American Chiropractic AssociationAlbany, OregonOregonDCs rules:1. Keep correspondence professional; the purpose of the listserve is to foster communication and collegiality. No personal attacks on listserve members will be tolerated.2. Always sign your e-mails with your first and last name.3. The listserve is not secure; your e-mail could end up anywhere. However, it is against the rules of the listserve to copy, print, forward, or otherwise distribute correspondence written by another member without his or her consent, unless all personal identifiers have been removed.

January 7, 2003

Dear Willard et al...

First, my "server-host" went down today, so I haven't received any mail since this afternoon 1/7/03.

I can send (?), but not receive...

Thanks for your reply.

My reply to your points in red below...

Re: "Failure to Diagnose or Refer, Problem?"

Vern et al,

I am a subluxation based chiropractor. I am not a WCA or ICA member or CBS insured. I present the following in the hopes of creating a broader understanding of the "to diagnose or not to diagnose" question from a subluxation-based perspective... to move from dogma to dialogue...

A couple of thoughts on the diagnosis issue...

1. Historically, I believe the issue has been at least partly legal, going back to BJ's time. BJ would testify in behalf of a chiropractor accused of practicing medicine without a license. BJ would argue "no diagnosis was made". In the absence of a diagnosis the chiropractor would be found "not guilty".

Any chiropractic history buffs out there can confirm or clarify?

2. If a named-diagnosed entity responds to chiropractic - subluxation correction, is the correct diagnosis: subluxation or the named entity?

Here is some additional background information that I believe sheds more light on the issue:

First, a Point-Counterpoint from The Chiropractic Journal, September 2000. Both the point and the counter point are written by attorneys.

Second, a WCA Position Paper on chiropractic diagnosis and referral. I found the legal decisions interesting.

Third, from the ICA's: The Chiropractic Choice: Chiropractic Diagnosis: The Issue Must Be Faced, Fred Barge, DC.

Fourth, I would recommend the book: The Role of Chiropractic by Leonard Rutherford DC. Rutherford practiced in Eugene, Oregon for 31 years. He was involved with the ICA from 1941 to 1971and served as President of the ICA from 1964 to 1971. It's an interesting read historically both nationally and as applies to Oregon, many legal/court case decisions are cited.

Hope you find it interesting... P.S. The red highlights in the following are mine...

Position Paper onchiropractic diagnosis and referral

In order to maintain a clear and unique identity for chiropractic, eliminate or reduce the public's confusion as to the role of a D.C. in health care, and protect doctors of chiropractic from malpractice lawsuits, it is critical to establish a common understanding and agreement about the extent of a doctor of chiropractic’s duty to diagnose and refer.

It is the position of the World Chiropractic Alliance that:

1) While training and statute may allow the chiropractor broad diagnostic scope, chiropractors may also elect to limit their practice and diagnostic scope to the detection, characterization and care of vertebral subluxations, and determining the safety and appropriateness of chiropractic care.

2) As stated in the Council on Chiropractic Practice, Clinical Guideline # 1: Vertebral Subluxation in Chiropractic Practice, "In the course of patient assessment and the delivery of chiropractic care, a practitioner may encounter findings which are outside his/her professional and/or legal scope, responsibility, or authority to address. The chiropractor has a responsibility to report such findings to the patient, and record their existence. Additionally, the patient should be advised that it is outside the responsibility and scope of chiropractic to offer advice, assessment or significance, diagnosis, prognosis, or treatment for said findings and that, if the patient chooses, he/she may consult with another provider, while continuing to have his/her chiropractic needs addressed."

3) There exists a wide variety of health care practitioners, systems of health care and cultural overlays that effect how the public utilizes health care services. While every practitioner should be sensitive to this wide variety of cultural and individual practices, it is not possible to dictate a particular class of provider that a patient must see for evaluation of unusual findings. This must be done on a case by case basis and must be a decision the patient is empowered to make.

To arrive at this position, the World Chiropractic Alliance relied on fundamental chiropractic teachings and definitions, the Council on Chiropractic Practice Guidelines, Association of Chiropractic Colleges Position Paper No. 1, literature from the World Health Organization, state scope-of-practice statutes, and numerous legal decisions. The following court cases are of particular importance:

People v. Beno, D.C. (422 Mich. 293. 373 N.W.2d 544, 1985). In this case, the court determined that the "practice of chiropractic" referred to the health care discipline that deals with "the nervous system and its relationship to the spinal column and its interrelationship with other body systems." This included diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care. The Supreme Court of Michigan held, "We do not believe the Legislature intended to authorize chiropractors to engage in general diagnostic techniques. Had such a result been intended, it could have been clearly stated."

Kerkman v. Hintz (142 Wis.2d 404, 4178 N.W.2d 795, 1988). This case pointed out the distinct differences between chiropractic and medical practice. The Court very clearly defined the extent of a chiropractor's duty to diagnose: "In summary, we hold that a chiropractor has a duty to (1) determine whether the patient presents a problem which is treatable through chiropractic means; (2) refrain from further chiropractic treatment when a reasonable chiropractor should be aware that the patient's condition will not be responsive to further treatment; and (3) if the ailment presented is outside the scope of chiropractic care, inform the patient that the ailment is not treatable through chiropractic means."

Goldstein v. Janusz (582 N.W.2d 78, 218 Wis.2d 683). The Court of Appeals of Wisconsin relied on Kerkman when it ruled, "Chiropractors have no duty to recognize medical problems." It added that "to do so would require chiropractors to make medical determinations which, under Wisconsin law, they are not licensed to make." The Court further noted, "Although chiropractors may take and analyze x-rays, they only do so for diagnostic or analytical purposes in the practice of chiropractic."

People v. Bovee. D.C. (285 N.W. 2d 53, Mich.Ct.App. 1979). In this case, a D.C. was found guilty of practicing medicine without a license after dispensing non-prescription medicines for colds and other ailments. He also took throat cultures and urine samples and implied to patients that he was diagnosing and treating specific health conditions. The Michigan statute defines chiropractic practice as including "Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care." The judge's ruling made it clear that a chiropractic diagnosis in Michigan involves determining subluxation and nerve interference, not the identification of specific medical diseases or conditions.

Treptau v. Beherens Spa, Inc., (20 N.W.2d 108, 247 Wis.438). A chiropractor examined and treated a patient's foot using bandages and diathermy. The Wisconsin Supreme Court stated, "Plaintiffs do not claim there was malpractice on the part of the defendant while Beherens was engaged in the practice of chiropracty (sic) by chiropractic manipulation or adjustments of the spine. Instead, plaintiffs contend there was malpractice when he and his associates went beyond the practice of chiropracty (sic) and entered into the general field of the practice of medicine...in so far as there was thus an invasion of the general field of that practice, the methods thus used by defendant's employees in diagnosis and treatment were subject to the rules applicable to the practice of medicine and surgery." The court relied on Kuechler v. Volgmann (192 N.W. 1015, 180 Wis. 238, 242-43), which held, "When a chiropractor assumes to diagnose and treat disease he must exercise the care and skill in so doing that is usually exercised by a recognized school of the medical profession."

Spunt v. Fowinkle (572 S.W.2d 259, Tenn.Ct. App., 1978). This case involved a doctor of chiropractic who offered medical procedures such as drawing blood and taking Pap smears. Tennessee statute defines chiropractic as "the science of palpating, analyzing and adjusting the articulations of the human spinal column and adjacent tissues by hand." It also states, "Any person shall be regarded as practicing medicine within the meaning of this chapter who shall treat, or profess to treat, operate on, or prescribe for any physical ailment or physical injury to or deformity of another." The court pointed to the doctor's intent as a critical factor in the case, saying that there was, technically, nothing in the law to prohibit the doctor from doing a Pap smear or drawing blood. If either or both of these procedures had been for the purpose of detecting subluxations or determining a chiropractic program of care for subluxation correction, they would have been acceptable. But since the doctor's purpose was clearly to diagnose disease, he had crossed the line separating chiropractic from medicine.

From the ICA's: The Chiropractic Choice, Editorial by Fred Barge, DC:

OregonDCs rules:1. Keep correspondence professional; the purpose of the listserve is to foster communication and collegiality. No personal attacks on listserve members will be tolerated.2. Always sign your e-mails with your first and last name.3. The listserve is not secure; your e-mail could end up anywhere. However, it is against the rules of the listserve to copy, print, forward, or otherwise distribute correspondence written by another member without his or her consent, unless all personal identifiers have been removed.

January 8, 2003

Mike

re:

> I would consider myself a " nondiagnosing " subluxation specific chiropractor,

> but I do not ignore and certainly do look at, " assess and address " these

> issues with my patients initially and throughout their care.

I heard a similar argument in a Peer Review interview.

Without naming names or telling anything that is not available for public

discussion, it got complicated quickly.

The nondiagnosing " subluxation specific chiropractor did not want to be in

the business of dx. He wanted to focus on subluxation assessment and

correction. A worthy goal. The problem being that we are trained to diagnose

and to see a patient traps us into doing so.

Likewise, if an M.D. doesn't wish to get into domestic problems with his

patients but sees signs of abuse, he/she is trapped as well. Wording it

another way does not remove responsibility.

The doctor in question was asked how he would assess carpal tunnel syndrome

by assessing the patient's spine. You must first ddx CTS from thoracic

outlet syndrome, double crush phenomenon, and various other dxs. He tried to

reply that he would " notice " other causes and refer if it was an extraspinal

issue. He was then asked how he would " notice " adequately as ddx involves

provocative tests such as Adsen's, Eden's, 's, Tinnel's, etc. These

are extraspinal ddx. tests for which we are trained and responsible.

We all threw down our sticks and gloves and a melee broke out. The linesmen

broke it up and we all enjoyed a wonderful catered lunch from Subway,

provided by the OBCE.

The truth is that the issue did not really get resolved to everyone's

satisfaction.

I would be very concerned if my brother in Minneapolis sought care from a

D.C. who was of the mind that they did not want to i.e. check blood

pressure. He has essential hypertension and it would be hard to " notice " if

he was about to blow a vessel.

We are left with a discussion of our standards for dx. and care.

I also happen to believe that a CTS patient has a better chance of

recovering if his/her cervicothoracic spine is adjusted by a skilled,

brilliant, clinician such as might be found at my office address!

See Double Crush Phenomenon in your Medline, JMPT, JAMA.

>I make lifestyle recommendations and refer (to GP's and other specialists or

> " alternatives " ) when applicable, often for concurrent care.

How do you know when to refer without doing dx. tests?

>

> Frequently, patients are already under care with another health care

> discipline and have already been " diagnosed " and find that chiropractic care

> (subluxation correction and lifestyle changes) enhances and or outperforms the

> other care they are/were receiving.

Suggesting that responsibility is shared because a pt. is under someone

else's care drops in its tracks. First, the pt. may be relying on you to see

the red flags. Secondly, the other doctor may be inadvertently relying on

your assessment for that condition. Third, everyone may be too busy to look

at everything, leaving you to do the most thorough job.

--

E. Abrahamson, D.C.

Chiropractic physician

Lake Oswego Chiropractic Clinic

601 First Street

Lake Oswego, OR 97034

503-635-6246

January 8, 2003

Sorry

for the spelling errors: her is the rewrite.

-----Original

Message-----

From: Dr. Willard Bertrand, D.C.

[mailto:mail@...]

Sent: Tuesday, January 14, 2003

10:01 AM

Oregon DC List

Subject: RE:

" Failure to Diagnose or Refer, Problem? "

Reference range for alignment: segmental mobility and

normal tone. Often this would coincide with normal spinal curves, however, in a

minority of cases, e.g. cerebral palsy and paralytic phase of MS are two

examples of exceptions. The

deconditioned “well” patient is

the single most common reason for

failure to seek at least normal cervical AP curve recovery.

You say structure dictates function. This is a

logical error. Which comes first, the life force or the life? You only know 2

things with certainty. 1. You exist and 2. you did not

create yourself. All else is more difficult to prove. To base and entire health

care system on “structure dictates function” is a logical error. This type of

error falsely compartmentalizes reality and leads to mental abjuration at the

time the facts are faced. Namely, when you die -- is it your structure or your

function that is failing?

Now, about the certification idea. I am a licensed

chiropractor. We both have the same educational foundation. You and every

chiropractor knows about each item I have presented. None of it is a secret

formula. The only difference may be that I have actually had 20+ years of

experience with the knowledge, while many have had as much or greater

experience ignoring it.

Willard

-----Original

Message-----

From: Mike Riemhofer D.C.

[mailto:drmike@...]

Sent: Monday, January 13, 2003

9:02 PM

Dr. Willard Bertrand, D.C.

Subject: Re:

" Failure to Diagnose or Refer, Problem? "

First,

I'm enjoying the exchange...

My

responses below, in black...

Mike

-----

Original Message -----

From: Dr. Willard

Bertrand, D.C.

Mike Riemhofer

D.C.

Sent: Friday, January 10,

2003 10:37 AM

Subject: RE:

" Failure to Diagnose or Refer, Problem? "

Definition

of subluxation:

A

misalignment of the spine causing nerve irritation resulting in a loss of

normal tone and a loss of normal function.

I can accept

your definition of subluxation, it's the one I use myself. Further

questions are:

A.

Misalignment from what? Subluxation-misalignment is abnormal,

abnormal from what, what is your " reference range " for normal

alignment of the spine?

B.

What tools/procedures do you use to determine the misalignment, both initially

and on an ongoing basis?

My points

below were:

1.

subluxation correction is not adequate without

quality healthcare.

2.

medical and other non-chiropractic providers do not

pay attention to spinal subluxation

3.

medical care is not directed at subluxation

prevention or correction

4.

chiropractic adjustment alone is not sufficient to

correct and prevent subluxation

medical care plus subluxation adjustment is not

sufficient to correct and prevent subluxation.

5.

6. Thanks for the

clarification, I have a better understanding of the point you were making.

7.

8.

Subluxation requires a focused balance of adjustment

and general healthcare interventions to achieve optimum correction

Annual assessment of aerobic fitness and movement

symmetry

q

Structure dictates function.

q

Movement symmetry necessitates static-

structural symmetry.

q

Blood chemistry and physical evaluation for optimum

nutritional requirements

q

Blood pressure, cardiac assessment, and lung

assessment for evaluation of neural O2/CO2 support

q

Digestive evaluation for absorption of nutrients for

the nervous system along with effects of organ ptosis, scar tissue, and

understanding of the need for normal digestive patterns in eating habits and

food selection to prevent constipation, IBS, and other mechanical bowel

functions

q

Hormonal evaluation to determine the neural

support/irritation form abnormal hormonal balance

And so on... like counseling

of various sorts to address the mental cause component...(?)

q

Medical

care + subluxation adjustment + referrals to alternative providers does not

equal medical care plus wide scope chiropractic care + referrals to alternative

providers.

I can

appreciate and respect the subtleties to the evaluations/workup you are

providing in a chiropractic paradigm.

I'm curious,

how many chiropractors are practicing in the way you describe above? My

guess would be that you are the exception rather than the rule?

What do you say

fellow listserve members?

Given my

Chiropractic Biophysics background I still think there is more to the

subluxation and it's correction than meets the eye and we haven't seen the best

of chiropractic yet.

Of course,

I have many patients who do not want wide scope chiropractic care and would be

glad to have an adjustment only chiropractor to send my patients to, perhaps

there is a good basis here for a chiropractic technician degree for that

person. C.T. sounds appropriate.

I appreciate

your update on this issue from earlier today. I had started my reply this

morning and hadn't had a chance to finish.

My thoughts on

the issue:

I wouldn't

consider myself a technician anymore than a neurologist or neurosurgeon or any

other specialist would consider themselves a technician relative to a GP.

I have spent

time, energy and expense in learning the specifics and acquiring the necessary

equipment to properly and consistently correct spinal subluxation.

I think it

would be a sign of professional maturity for both the widescope chiro and the

subluxation chiro to co-exist without any negative undertone either way.

In fact, it could be a great win-win-win for our patients and the

chiropractors of both specialties.

The ons/Chiropractic

Biophysics now have certification in their technique. To qualify you

must attend the five main modules and there is a practical, written and

biomechanical x-ray analysis exam. Upon passing you receive a

" Fellow of Clinical Biomechanics of Posture " certificate.

Is/are there similar certifications for the

" widescope " chiropractor?

Going back to

the original post on this topic, I still think that the information presented

regarding diagnosis indicates the " responsible " subluxation-based

chiropractor does " diagnose " sufficiently to ensure

the patient's safety.

Mike

Willard

Fw:

" Failure to Diagnose or Refer, Problem? "

Re: " Failure to Diagnose or Refer,

Problem? "

Vern et al,

I am a subluxation based

chiropractor. I am not a WCA or ICA member or CBS insured. I

present the following in the hopes of creating a

broader understanding of the " to diagnose or not to

diagnose " question from a subluxation-based perspective... to move

from dogma to dialogue...

A couple of thoughts

on the diagnosis issue...

1. Historically, I

believe the issue has been at least partly legal, going back to BJ's

time. BJ would testify in behalf of a chiropractor accused of

practicing medicine without a license. BJ would argue " no diagnosis

was made " . In the absence of a diagnosis the chiropractor

would be found " not guilty " .

Any chiropractic

history buffs out there can confirm or clarify?

2. If a

named-diagnosed entity responds to chiropractic - subluxation correction, is

the correct diagnosis: subluxation or the named entity?

Here is some additional

background information that I believe sheds more light on the issue:

First, a

Point-Counterpoint from The Chiropractic Journal, September 2000. Both

the point and the counter point are written by attorneys.

Second, a WCA

Position Paper on chiropractic diagnosis and referral. I found the legal

decisions interesting.

Third, from the ICA's:

The Chiropractic Choice: Chiropractic Diagnosis: The Issue Must Be

Faced, Fred Barge, DC.

Fourth, I would

recommend the book: The Role of Chiropractic by Leonard Rutherford DC.

Rutherford practiced in Eugene, Oregon for 31 years. He was involved

with the ICA from 1941 to 1971and served as President of the ICA from

1964 to 1971. It's an interesting read historically both nationally

and as applies to Oregon, many legal/court case decisions are

cited.

Hope you find it

interesting... P.S. The red highlights in the following are mine...

1986-2002 The Chiropractic Journal

Position Paper on

chiropractic diagnosis and referral

In order to maintain a clear and unique identity

for chiropractic, eliminate or reduce the public's confusion as to the role

of a D.C. in health care, and protect doctors of chiropractic from

malpractice lawsuits, it is critical to establish a common understanding

and agreement about the extent of a doctor of chiropractic’s duty to

diagnose and refer.

It is the position of the World Chiropractic

Alliance that:

1) While training and statute may allow the

chiropractor broad diagnostic scope, chiropractors may also elect to limit

their practice and diagnostic scope to the detection, characterization and

care of vertebral subluxations, and determining the safety and

appropriateness of chiropractic care.

2) As stated in the Council on Chiropractic

Practice, Clinical Guideline # 1:

Vertebral Subluxation in Chiropractic Practice, " In the

course of patient assessment and the delivery of chiropractic care, a

practitioner may encounter findings which are outside his/her professional

and/or legal scope, responsibility, or authority to address. The

chiropractor has a responsibility to report such findings to the patient,

and record their existence. Additionally, the patient should be advised

that it is outside the responsibility and scope of chiropractic to offer

advice, assessment or significance, diagnosis, prognosis, or treatment for

said findings and that, if the patient chooses, he/she may consult with

another provider, while continuing to have his/her chiropractic needs

addressed. "