By Clem Martin D.C.

Last week in 98th District Court, Travis County, Texas, Judge Rhonda Hurley took less that 48 hours to rule against the TBCE and the People of Texas. This report provides a bit of the history surrounding this case.

On Dec. 15, 2008, a scope of practice question was placed before the TBCE; "is videonystagmography, electronystagmography and electronic balance testing within scope of Title 3, Subsection C, Chapter 201.002 of the Texas Occupations Code." The TBCE is required by law to investigate and respond to all questions of scope pertaining to the practice of chiropractic. After almost a year long investigation of the vestibular system and its integration with chiropractic applications, the Board unanimously voted that vestibular testing with video/electronystagmography and electronic balance testing was within the scope of chiropractic.

On April 6, 2010 the TBCE held a public hearing allowing interested parties to comment upon the proposed amendment to 22 TAC Rule 75.17 including vestibular instrumentation testing within scope of chiropractic. The hearing offered an opportunity for those with concernts to offer positional statements. This hearing was attended by interested practicing chiropractors and representatives of both the Texas Medical Association and the Texas Medical Board. Written objections had been filed by the Texas Board of Audiology, American Academy of Otolaryngology, American Otology Society and the Texas Medical Board. Parker Chiropractic College filed a statement in support of the TBCE's position.

Upon the TBCE's passage of Rule 75.17(3)(C) [The Vestibular Rule], the Texas Medical Association filed suit in Travis Count seeking Summary Judgment to overturn the TBCE Scope Rule. The TMA argued that the purpose of vestibular testing was to diagnose problems with the brain, inner ears or eyes. They hypothesized that the ears, eyes and brain were "not a part of the spine nor biomechanics of the musculoskeletal system of the human body."

Expert witnesses were deposed by both sides. Appearing for the TBCE was Professor Fredrick Carrick, DC, MS, PhD and Brandon Brock DC, Board Certified in Vestibular testing. Both performed superbly under intense examination by Plaintiff (TMA) attorney, David Bragg. Mr. Bragg represented the TMA and TMB in the MUA, NEMG and diagnosis suit. Both Dr. Carrick and Dr. Brock carefully defined the significance of the Vestibular System in human segmental movement, positioning, and other bodilly functions. Appearing for TMA was an Austin area Otolaryngologist, James Wallace MD and also from the Austin area, Bridgett Wallace, PT.

By happenstance just a few weeks prior, in November 2011, the Discover Channel telecast segments of Dr. Carricks management of some concussed Hockey players. The telecast showed videonystagmography and electronic balance testiing in use by Dr. Carrick. One of these patients was a well known professional hockey player and MVP, Sidney Crosby. The segment focused on Crosby's injury and his long term treatment, without significant improvement, at the University of Pennsylvania Medical Center. Mr. Crosby consulted with Dr. Carrick and was very shortly returned to peek performance. He scored four goals in the first game of his return to competition. Unfortunately, these telecasts were not admitted into evidence for TBCE.

The Vestibular system of the human being is an integral part of its ability to position, to posture and to control its muscular movement within the gravity field of its environment. When determining how the musculoskeletal system maintains segmental positioning and movement, we must look to the ocular, labyrinthine canals and the proprioceptive input into the vestibular system. Electronystagmography, Videonystabmography and balance testing permit sophisticated evaluation of the function of the vestibular system pre- and post-intervention.

As of this moment it is not known what course of action the TBCE will take. Like Hamlet's, to be or not to be, our Board must decide whether or not to appeal this "quick decision." To deny the assessment of the vestibular system to those who are legislative charged to use "objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body" and who are charged to perform "nonsurgical, nonincisive procedures ... to improve ... the biomechanics of the musculoskeletal system" is to deny them access to a key regulating feature of the musculoskeletal system.

Denial of vestibular testing is a severe handicap to the chiropractic profession, but it can be a much greater liability to the health and well being of the People of Texas. While the Texas Medical Association would have the court system determine scope of practice issues, this position ignores the fact that the legislature has vested the Board system with the authority to determine scope-of practice issues and demonstrates the desire of some to have someone other than the duly appointed experts determine the scope of chiropractic practice. In reality, it is the desire of the majority to control the actions of the minority through any means necessary.