CHIROPRACTORS ‑- MEDICINE ‑- SURGERY AND OSTEOPATHY ‑- LEGALITY OF CERTAIN ACTIVITIES BY CHIROPRACTORS

CHIROPRACTORS ‑- MEDICINE ‑- SURGERY AND OSTEOPATHY ‑- LEGALITY OF CERTAIN ACTIVITIES BY CHIROPRACTORS

It is not lawful for a chiropractor, as such, to make a medical diagnosis, to use medical electrotherapies such as ultrasound, diathermy and galvanic current as a form of treatment in the course of his practice, or to prescribe electrotherapy or to use electrotherapy on a patient pursuant to a prescription from a medical doctor.

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                                                                 January 12, 1977

Honorable Jim Matson
State Senator, 14th District
Legislative Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1977 No. 3

Dear Sir:

            By recent letter you requested our opinion with regard to the legality of the performance of certain activities by persons licensed as chiropractors.  We paraphrase your questions as follows:

            (1) Is it lawful for a chiropractor, as such, to make a medical diagnosis?

            (2) Is it lawful for a chiropractor, as such, to use medical electrotherapies such as ultrasound, diathermy and galvanic current as a form of treatment in the course of his practice?

            (3) Is it lawful for a chiropractor, as such, to prescribe electrotherapy or to use electrotherapy on a patient pursuant to a prescription from a medical doctor?

            We answer all three of these questions in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            The licensing of chiropractors is covered, in general, by chapter 18.25 RCW.  For the purposes of this law the term "chiropractic" is defined by RCW 18.25.005 to mean and include:

             [[Orig. Op. Page 2]]

            ". . . that practice of health care which deals with the detection of subluxations, which shall be defined as any alteration of the biomechanical and physiological dynamics of contiguous spinal structures which can cause neuronal disturbances, the chiropractic procedure preparatory to, and complementary to the correction thereof, by adjustment or manipulation of the articulations of the vertebral column and its immediate articulations for the restoration and maintenance of health; it includes the normal regimen and rehabilitation of the patient, physical examination to determine the necessity for chiropractic care, the use of x-ray and other analytical instruments generally used in the practice of chiropractic: . . ."

            In addition, however, RCW 18.25.005 contains the following three qualifying provisos:

            ". . .  Provided, That no chiropractor shall prescribe or dispense any medicine of drug nor practice obstetrics or surgery nor use x-rays for therapeutic purposes:  Provided,however, That the term 'chiropractic' as defined in this act shall not prohibit a practitioner licensed under chapter 18.71 RCW from performing accepted medical procedures, except such procedures shall not include the adjustment by hand of any articulation of the spine:  And provided further, That nothing herein shall be construed to prohibit the rendering of dietary advice."

            From this statute it will readily be seen that none of the activities referred to in your questions are among those in which a chiropractor is specifically authorized to engage by virtue of his chiropractic license.  That, however, does not fully answer your questions ‑ for the mere fact that a certain activity is not among those which a chiropractor is licensed by chapter 18.25 RCW to perform does not necessarily mean that its performance by such a licensee is unlawful.  Accord, AGLO 1973 No. 83 [[to Dan Van Dyk, State Representative, on July 25, 1973, an Informal Opinion, AIR-73583]], a copy enclosed.  As we there further explained, in order for a given activity to be unlawful it must fall within the scope of the prohibition which then was in RCW 18.25.030 and now, in slightly different form, is contained in the first proviso to RCW 18.25.005,supra; or alternately, it must be an activity which may only be lawfully performed by a person holding some other license not possessed by the chiropractor in question.

             [[Orig. Op. Page 3]]

            In order to illustrate this analytical point let us once again, as we did in AGLO 1973 No. 83, consider the case of a licensed chiropractor who, for private recreational purposes, owns and operates a motorboat.  Clearly that does not fall within the scope of a chiropractor's legal activities as set forth in RCW 18.25.005.  Nevertheless, the operation of a motorboat by a licensed chiropractor would not be illegal unless it either fell within the list of things which chiropractors are prohibited from doing under the first proviso of RCW 18.25.005, or unless it required some other license which the particular chiropractor did not have.  Since it does neither it would not be illegal.  Conversely, because the statutes of our state do require a license in order to operate a motor vehicle upon the highways of this state (see, chapter 46.20 RCW) a chiropractor without a valid driver's license may not drive a car ‑ but not because of anything contained in chapter 18.25 RCW or any other statute relating to chiropractors.

            Based upon this analysis we then concluded, in AGLO 1973 No. 83, that it is not unlawful for a chiropractor to administer blood tests or make urinalysis examinations ‑ at least so long as the act of testing or examining the particular substance is strictly limited to that.  We further went on to say, however, that if the chiropractor also withdraws the substance to be tested (i.e., blood) by "severing or penetrating the tissues of human beings,"

            ". . . the potential of a violation of both RCW 18.25.030 and RCW 18.71.020 must be said to exist.  It could very well be concluded that the act performed in the withdrawal of blood for testing amounts to the practice of surgery within the prohibitions of both of these statutes."1/

             By our reference to RCW 18.25.030 we were thus merely alluding to the possibility that the act in question might constitute the practice of surgery ‑ which was then proscribed by that statute in the same manner as it is now, in the case of chiropractors, by RCW 18.25.005,supra.  By also citing RCW 18.71.020, however, we sought to convey the further point that even in the absence of a prohibition in the chiropractic law itself there would be a legal barrier  [[Orig. Op. Page 4]] to the performance of any surgical function by a chiropractor, as such ‑ because of the necessity of a different license ‑ not, of course, a driver's license (as in our earlier hypothetical case) but, instead, the license to which RCW 18.71.020 refers when it says that:

            "Any person who shall practice or attempt to practice or hold himself out as practicing medicine in this state, without having, at the time of so doing, a valid, unrevoked license as provided in this chapter, shall be guilty of a gross misdemeanor: . . ."

            In other words what we were thus saying in AGLO 1973 No. 83, supra, was that even if the act constituting the practice of medicine or surgery was not a prohibited act in the case of a chiropractor because of something in chapter 18.25 RCW, itself, such an act would, nevertheless, be barred by RCW 18.71.020, supra, unless the particular chiropractor also held a valid license to practice those other healing arts.

            Bearing all of this in mind let us now turn, in order to answer your present questions, to the following provisions of RCW 18.71.011:

            "A person is practicing medicine if he does one or more of the following:

            "(1) Offers or undertakes to diagnose, cure, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality;

            "(2) Administers or prescribes drugs or medicinal preparations to be used by any other person;

            "(3) Severs or penetrates the tissues of human beings;

            "(4) Uses on cards, books, papers, signs or other written or printed means of giving information to the public, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human disease or conditions the designation 'doctor of medicine', 'physician', 'surgeon', 'm.d.' or any combination thereof unless such designation additionally  [[Orig. Op. Page 5]] contains the description of another branch of the healing arts for which a person has a license:  Provided however, That a person licensed under this chapter shall not engage in the practice of chiropractic as defined in RCW 18.25.005."

            One aspect of this statute which immediately "jumps out" at anyone reading it with a mind focused upon the subject of your present questions is that RCW 18.71.011 also contains a prohibition comparable to, though somewhat broader than that contained in, RCW 18.25.005, supra.  While the latter says that no chiropractor ". . . shall prescribe or dispense any medicine or drug nor practice obstetrics or surgery nor use x-rays for therapeutic purposes . . .," RCW 18.71.011 simply says that a person licensed as a physician or surgeon ". . . shall not engage in the practice of chiropractic as defined in RCW 18.25.005."  The difference between these two correlative prohibitions, therefore, is while the one dealing with licensed physicians and surgeons prohibits those licensees from engaging in any acts falling within the scope of chiropractic practice, the one dealing, in turn, with chiropractors only prohibits, by its own terms,some of the activities falling within the practice of medicine as defined in RCW 18.71.011; namely, the prescribing (or dispensing) of any medicine or drug, the practice of obstetrics or surgery, or the use of x-rays for therapeutic purposes.

            Conversely, however, RCW 18.25.005 does not, by its own terms, prohibit a chiropractor from (in the words of your question) (1) making ". . . a medical diagnosis"; (2) using ". . . medical electrotherapies such as ultrasound, diathermy and galvic current as a treatment in the course of his practice"; or (3) "prescribing electrotherapy or using electrotherapy on a prescription from a medical doctor."  Nevertheless, because it is patently clear that the first of these three activities, at least, falls squarely within the scope of the practice of medicine as defined in RCW 18.71.011,supra, it is our opinion, in answer to your first question, that it is not lawful for a chiropractor, as such, to engage in that activity; i.e., a chiropractor, as such, may not make a medical diagnosis.2/

             As for the use of electrotherapy (i.e., the subject of your second question), we find that this term is defined in Webster's Third New International Dictionary (1961 ed., p. 733) as:

             [[Orig. Op. Page 6]]

            ". . . treatment of disease by means of electricity (as by diathermy or other means of electrically generated heat)"

            Electrotherapy, therefore, also clearly falls within the scope of practicing medicine as set forth in RCW 18.71.011(1), supra.  Moreover we also note that electrotherapy is included in the definition of "drugless therapeutics" in RCW 18.36.010 and the use of electricity in the treatment of any human condition is a part of the definition of "physical therapy" in RCW 18.74.010(1).  But it is not, as we have earlier seen, among the things listed in RCW 18.25.005,supra, as being within the scope of "chiropractic" practice.  Because of that fact, and because of RCW 18.71.011 and 18.71.020, supra, it therefore necessarily follows that a chiropractor, as such, may not lawfully use electrotherapy as a treatment in the course of his practice.

            Lastly, we turn to your third question which, repeated for ease of reference, asks:

            "Is it lawful for a chiropractor, as such, to prescribe electrotherapy or use electrotherapy on a patient pursuant to a prescription from a medical doctor?"

            Insofar as the act of prescribing electrotherapy is concerned, our analysis and answer are both the same as above.  Under RCW 18.71.011(1),supra, the act of prescribing for any human condition, by any means or instrumentality, constitutes the practice of medicine.  And again, that act clearly does not come within the lists of practices or activities which may be performed by a chiropractor in accordance with the definition contained in RCW 18.25.005, supra.  Therefore, it is not lawful for a chiropractor, as such, to prescribe electrotherapy.

            Nor, in our opinion, may a chiropractor use electrotherapy even on a prescription from a medical doctor.  Unlike the physical therapy act (RCW 18.74.110), the licensed practical nursing act (RCW 18.78.172) and the registered nursing act (RCW 18.88.285) ‑ all of which authorize the respective licensees to administer treatments upon the prescription of a physician ‑ there is no comparable statutory authority for a chiropractor to perform any treatment on the prescription of a physician.  The statutory system which specifically authorizes some licensees to treat a patient on a physician's prescription clearly indicates that while a physician's prescription directs action to be taken the person performing  [[Orig. Op. Page 7]] the same must be authorized by law to perform the particular act in question.  Since a chiropractor is not authorized by statute to perform electrotherapy or function pursuant to a medical doctor's prescription, it thus follows that a medical doctor may not confer such authority upon a chiropractor by prescribing the same.