Texas PI Attorney's Comments Raise Question -- DCs, Are You Going to Negotiate Over Your Right to Diagnose?

Keith Pendleton, JD

2:30 p.m. ET, Friday, April 30, 2010

 

As many of you know, lately I've been writing on the topic of the TMA v. TBCE lawsuit.  This has generated discussion, which is great, and also needed.  More is needed still.

 

As part of the discussion, a PI attorney (name omitted) recently published the comment about the TMA lawsuit on a community website.  Here's what he said -- "I don't believe the right to diagnose will be taken from DC's. That's a scare tactic and barganing chip the TMA will use when a compromise is sought."

 

I hope this PI attorney is right.  What I mean by this is that I hope this PI attorney is right that it's just a scare tactic and nothing more... and that the minute DCs show the slightest resolve on this issue, it will vanish.  I also hope that he is right that diagnosis will not be taken away from DCs.  "Compromise?"  Yes, I know, it's part of my title, and yes, I may even agree with you -- but let's hold this one for just a moment.

 

My question is -- can you really afford to assume this PI attorney is right?

 

The TCA attorneys -- whom he compliments -- don't seem like they're characterizing the TMA's actions as just a "scare tactic."  Quite the contrary, here's what they say:

 

 

But let's say the roles were reversed.   

 

 

Seriously, I want you to imagine this. 

 

If a lawsuit like this were filed against the Texas State Bar, of course, you would have the attorneys chuckling saying, "You're kidding me, right?" 

 

But then as it became clear that it was no joke, that a lawsuit like this was actually filed, the firestorm that would be unleashed throughout the national legal community, and the magnitude of the aftershocks that would occur thereafter -- and I mean, for generations to come -- would be second to no other lawsuit ever filed.

 

"Bargaining Chip"?  "Compromise"?  If a case like this were to be filed against a State Bar, there would be no compromising, no discussions, certainly no bargaining chips.  There would be no end to the resources that were thrown at the suit. 

 

DCs, as difficult as it may be to comprehend this, your right to diagnose, the counterpart to rendering a legal opinion in the legal world, is being totally challenged, in court, based on State constitutional grounds, by a founding member of a national coalition, in a State where you have been diagnosing for decades, and even getting paid for it under State insurance law!

 

We're not talking about -- your right to diagnose is kind-of-sort-of-like being questioned.  The court document filed by the TMA on March 26, 2010 reads, point blank, as follows: 

 

"This suit seeks a declaration that specific provisions of the Scope of Practice Rule ... are invalid because they authorize chiropractors to practice medicine by making a 'diagnosis' concerning the biomechanical condition of the spine or musculoskeletal system when Tex. Occ. Code § 201.002(b) limits the practice of chiropractic to the use of objective or subjective means to 'analyze, examine, or evaluate' conditions."  Plaintiffs' Fifth Amended Original Petition, filed March 26, 2010.

 

 

This case is not predominantly about Needle EMG.

 

It's not predominantly about MUA.

 

It's about your right to diagnose.

 

Is this something you really wish to discuss, negotiate and compromise over?

 

Perhaps you should ask your attorney.