Scope of practice

• Columbia Physical Therapy v. Benton FranklinOrthopedic Associates
• Kentucky Board of Physical Therapy v. Dubin
• Medical Society of Virginia v. Niamtu
• Missouri State Medical Association v. State of Missouri 
• Tennessee Medical Association v. Tennessee Board of Dentistry 
• Texas Medical Association v. Texas State Board of Examiners of Marriage and Family Therapists
• Texas Orthopaedic Association v. Texas State Board of Podiatric Medicine 
• Wisconsin Academy of Ophthalmology v. State of Wisconsin Optometry Examining Board 

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates (Wash. S.Ct.)

Issue

The issue in this case is whether an orthopedic surgery practice may employ physical therapists under Washington State licensure laws.

AMA interest

In Washington State, as elsewhere, orthopedic surgery practices often employ physical therapists. The AMA believes that physicians should be allowed to provide any accepted form of health care to benefit their patients, within the scope of their clinical competence. This should include the employment of allied health care professionals to assist them.

Case summary

In this “reverse scope of practice” lawsuit in Washington state court, a physical therapy practice is suing an orthopedic surgery practice and related parties, contending that the orthopedic surgery practice's employment of physical therapists violates Washington State licensure laws. The suit asserts the following claims:

1. Breach of the Washington anti-rebate statute;
2. Breach of the Washington statutes prohibiting unprofessional conduct by physicians;
3. Breach of the Washington consumer fraud and unfair business practices statute;
4. Breach of the Washington statutes governing professional corporations and limited liability companies;
5. Breach of the Washington common law prohibiting the corporate practice of medicine.

Both sides moved for summary judgment.  The trial court granted summary judgment to the defendants on the fourth cause of action (pertaining to professional corporations and limited liability companies), denied summary judgment to both parties on the first three causes of action, and refused to rule on the fifth cause of action (pertaining to the corporate practice of medicine).

The trial court certified its rulings for immediate, interlocutory review and stayed further proceedings before it, pending such review.  On September 3, 2008, the Washington Supreme Court granted discretionary review of the trial court's order.

Litigation Center involvement

This case could set an important precedent within the State of Washington and possibly nationally.  The Litigation Center is therefore contributing toward the physicians' defense costs.  Also, the Litigation Center and the Washington State Medical Association will ask leave to file an amicus brief in the Washington Supreme Court to support the orthopedic surgery practice.

Kentucky Board of Physical Therapy v. Dubin
2007 Ky. App. LEXIS 350 (Ky. App. 2007)

Issue

The issue in this case is whether a physician can bill for physical therapy services under the Kentucky Physical Therapy Act.

AMA interest

The AMA supports the right of a physician to bill under Current Procedural Terminology (CPT) criteria.

Case summary

The Kentucky State Board of Physical Therapy sued to enjoin Dubin Orthopaedic Centre, Inc. (whose sole shareholder is Dr. Dubin) from billing using certain CPT codes for physical therapy services, because those services were not provided by a licensed physical therapist. The Board claimed it is illegal under the Kentucky Physical Therapy Act for a non-physical therapist—even a physician—to bill for these services. While the suit was pending, the Kentucky Board of Medical Licensure issued an advisory opinion finding that physicians do have the right to bill for physical therapy services. On cross-motions for summary judgment, the trial court found in favor of Dubin Orthopaedic. The Board of Physical Therapy appealed.

The Kentucky Court of Appeals reversed the trial court's order and directed the trial court to enjoin Dubin Orthopaedic from using CPT codes for physical therapists in his billing for physical therapy services. The appellate court noted that a licensed physician may utilize treatment modalities that are the same as, or similar to, those provided by a licensed physical therapist. Nevertheless, the appellate court found that the statute at issue mandated that no person other than a licensed physical therapist, even a licensed physician, can submit a bill that describes his services as physical therapy services.

The Kentucky Supreme Court has granted Dubin Orthopaedic's request to hear the case. Briefing by Dubin Orthopaedic and its amici is due on June 15, 2008.

Litigation Center involvement

The AMA joined with the Kentucky Medical Association in the filing of an amicus curiae brief in the court of appeals on behalf of Dubin Orthopaedic.

View the brief (PDF, 474KB).

Medical Society of Virginia v. Niamtu (Richmond, Va., Cir. Ct.)

The Medical Society of Virginia (MSV) brought this scope of practice lawsuit against a group of maxillofacial surgeons. The suit alleged that the defendants, who are licensed as dentists but not as physicians, were performing plastic surgery and dermatological procedures on body structures beyond the teeth, gum, and jaws. Moreover, the suit alleged, the defendants advertised themselves as “doctors”, without modifying the description to show they are “doctors of dental surgery”. Such actions allegedly constituted the unlawful practice of medicine, in violation of the Virginia statutes. In response to the MSV complaint, the defendants said that, notwithstanding the Virginia statutes, they are as well qualified to perform these procedures as are licensed physicians. The defendants counterclaimed, alleging a conspiracy by MSV and others to harm their business and an abuse of legal process.

After the suit was filed, the Virginia legislature passed a law that broadens the permissible scope of dental practice and provides certification procedures for dentists who wish to avail themselves of that expanded scope. Both the complaint and the counterclaim were voluntarily dismissed, with prejudice.

The Litigation Center contributed toward a portion of the litigation expense.

Missouri State Medical Association v. State of Missouri
(Mo. S.Ct. 2008)

Issue

The issue in this case is whether a Missouri statute allowing for the practice of midwifery, the enactment of which was effected by a one-sentence insertion buried within another bill without proper notice of its contents, is constitutional.

AMA interest

The AMA believes that non-physician healthcare practitioners should provide only that health care that is appropriate to their education, training, and experience.

Case summary

Shortly before the Missouri General Assembly was to vote on a lengthy bill relating to health insurance, a state senator slipped in a provision that would allow midwifery practice. The midwifery section of the bill did not include provisions for state licensure or other regulation. The implications of the amendment were not made known to the rest of the legislators, who passed the amendment along with the rest of the bill. The governor signed the bill, which was then to become a law.

The Missouri State Medical Association (MSMA), along with the Missouri Association of Osteopathic Physicians and Surgeons, the Missouri Academy of Family Physicians, and the St. Louis Metropolitan Medical Society, sued the State of Missouri for a declaratory judgment and an injunction against enforcement or implementation of the new law. The complaint asserted that the midwifery law would be unconstitutional because (a) the bill leading up to its passage violated Mo. Const. art. III, § 21, which provides: "[N]o bill shall be so amended in its passage through either house as to change its original purpose," and (b) the bill also violated Mo. Const. art. III, § 23, which provides: "No bill shall contain more than one subject which shall be clearly expressed in its title."

The trial court found the purported law unconstitutional, for the reasons plaintiffs had advocated, and it enjoined its enforcement. The State of Missouri appealed to the Missouri Supreme Court. Unfortunately, on June 24, 2008, the Missouri Supreme Court reversed the trial court on the ground that the plaintiffs-medical societies lacked standing. The Court therefore did not reach the constitutional issue.

Litigation Center involvement

The Litigation Center contributed toward the MSMA litigation expenses and filed an amicus curiae brief to support the MSMA's position in the Missouri Supreme Court.

View the brief (PDF, 55KB).

Tennessee Medical Association v. Tennessee Board of Dentistry
2001 Tenn. App. LEXIS 528 (Tenn. App. 2001)
2003 Tenn. LEXIS 226 (Tenn. S.Ct.)

The Tennessee Medical Association sued the Tennessee Board of Dentistry in a scope of practice dispute. The dentistry board tried to allow maxillofacial surgeons to perform examinations and procedures that exceed the statutory mandate of caring for “teeth…jaws or associated structures.” The board allowed dentists to perform aesthetic and reconstructive surgery on all parts of the head and neck, including on the eyelids, nose, and ears.

TMA won in the trial court, but the case was appealed. The Tennessee Supreme Court affirmed. The Litigation Center underwrote half the cost of that appeal.

Texas Medical Association v. Texas State Board of Examiners of Marriage and Family Therapists (Travis Co. Tex. District Ct.)

Issue

The issue in this case is whether regulations that expand the scope of practice of marriage and family therapists into psychiatry are valid.

AMA interest

The AMA believes that non-physician healthcare practitioners should provide only that health care that is appropriate to their education, training and experience.

Case summary

The Texas State Board of Examiners of Marriage and Family Therapists recently adopted regulations that would expand such therapists' scope of practice into psychiatry. In short, the rules governing the practice of marriage and family therapy were modified to include “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the International Classification of Diseases (ICD)” as part of such therapists' professional role.

The Texas Medical Association plans to sue the Texas State Board of Examiners and Family Therapists to challenge the new rules.

Litigation Center involvement

The Litigation Center will make a financial contribution to support the Texas Medical Association lawsuit.

Texas Orthopaedic Association v. Texas State Board of Podiatric Medicine
2008 Tex. App. LEXIS 1819 (Tex. Ct. App. 3rd Dist. 2008)

Issue

The issue in this case is whether the Texas State Board of Podiatric Medicine (TSBPM) could define the "foot" as including the ankle and various soft tissue.

AMA interest

The AMA believes that non-physician health care practitioners should only provide health care that is appropriate to their education, training, and experience.

Case summary

This "scope of practice" suit challenges the validity of a regulation adopted by TSBPM. The Texas podiatric statute restricts podiatric care to medical conditions concerning the "foot." Under the TSBPM regulation, the "foot" is defined to include "the ankle and the tibia and fibula in their articulation with the talus…inclusive of all soft tissues…that insert into the tibia and fibula in their articulation with the talus."

The Texas Orthopaedic Association (TOA) and the Texas Medical Association (TMA) sued to declare the TSBPM regulation inconsistent with the Texas podiatric statute. Without stating reasons for the decision, the trial judge upheld the contested regulation. TOA and TMA appealed that ruling. On March 14, 2008, the appellate court reversed the ruling of the trial court, holding the TSBPM had exceeded its authority when issuing its definition of the “foot.” A further appeal by the TSBPM and/or efforts by Texas podiatrists to seek legislative relief are anticipated.

Separately, the Texas Podiatric Medical Association (TPMA) brought its own suit against TOA, the TMA, and the TOA president, claiming that the defendants violated the Texas antitrust laws by urging hospitals to refuse to credential podiatrists to treat diseases of or injuries to the ankle. In that case, the court granted summary judgment in favor of TOA, TMA, and the TOA president.

Litigation Center involvement

The Litigation Center has contributed to TOA's legal expenses in this protracted litigation. The Litigation Center also filed an amicus curiae brief, along with the American Academy of Orthopaedic Surgeons and the Texas chapters of several specialty medical societies, to support TOA and TMA.

View the brief (PDF, 91KB).

Wisconsin Academy of Ophthalmology v. State of Wisconsin Optometry Examining Board (Dane County, Wisc. Cir. Ct.)

Issue

The issue in this case was whether optometrists should be permitted to perform laser eye surgery, given that: (1) they do not have the extensive medical/surgical training that should be a prerequisite to performing such delicate, difficult and complicated surgery; and (2) laser surgery exceeded the state statutory definition of permissible practice by optometrists.

AMA interest

The AMA believes that the public should be protected from a non-physician performing an inherently dangerous medical procedure.

Case summary

The Optometry Examining Board of the State of Wisconsin (Board), without notice or opportunity for public comment, ruled that Wisconsin optometrists could perform laser eye surgery. Immediately thereafter, some optometrists started to perform the procedure.

The Wisconsin Academy of Ophthalmology, the American Academy of Ophthalmology and the State Medical Society of Wisconsin sued the Board for declaratory and injunctive relief. In essence, the plaintiffs alleged that: use of lasers on the eye constitutes surgery; numerous delicate and difficult ophthalmologic surgeries are performed with use of a laser; there are contraindications and potential complications associated with laser procedures; and ophthalmologists receive extensive medical training while optometrists do not. Plaintiffs contended that the Board action was invalid because laser surgery exceeds the scope of permissible practice by optometrists, as defined by state statute. Plaintiffs further contended that the Board ignored statutory rule making procedures.

Shortly thereafter, the Board rescinded its ruling and announced its intent to promulgate future rules allowing laser surgery by optometrists. By amended complaint, with the Litigation Center now added as a plaintiff, the plaintiffs sought a judicial declaration that defendant's rescission of its earlier ruling still exceeded the Board's authority. The remaining relief requested was substantially similar to that of the initial complaint. The amended complaint also sued four individual optometrists, who allegedly were performing laser eye surgery.

The court denied a motion by the Wisconsin Attorney General to dismiss the Wisconsin Optometry Board from the case for lack of ripeness. The board then withdrew its notice of intent to promulgate a rule concerning laser surgery by optometrists.

The plaintiffs moved for summary judgment and the defendants subsequently cross-moved for summary judgment in their favor. The court denied the plaintiffs' motion, granted the defendants' motion, and dismissed the ophthalmologists' lawsuit. Although the court did not explain its reasoning, it may have felt that, in light of the decision by the Optometry Board to rescind its earlier ruling, which had originally prompted the case, the lawsuit had become moot.

Litigation Center involvement

The Litigation Center joined the lawsuit as an additional plaintiff in the amended complaint.