4.1 THE FIRST CASE –BEGINNING YEAR 1907
It is certainly true that for most of its existence, the chiropractic profession has battled with what is known as mainstream medicine or political medicine. The activities of political medicine have at times been blatantly dishonest but sustained by what they have characterized as antiscientific and pseudo-scientific ideas or beliefs held by the chiropractic profession such as subluxation or innate intelligence.
From the start, there was conflict between the medical establishment and the founder of this emerging profession. DD Palmer became well known for publishing anti-medicine messages in his advertisements and eventually he was accused of practicing unlicensed medicine in 1905. He was found guilty of 1906 and sentenced to 105 days in Jail. He served 23 days and finally paid a $350 fine to be released. [1], [2]
Other early chiropractors were accused of practicing medicine without a license and were faced with court action against them. This led to the formation of the Universal Chiropractic Association (UCA) by B.J. and several Palmer graduates, with its initial purpose to protect its members by covering their legal expenses if and when they were arrested. [1]
The first case was in 1907, when Shegataro Morikubo DC of Wisconsin, a Palmer School of Chiropractic (PSC) graduate was charged with practicing medicine, surgery and osteopathy without a license upon arrest in La Crosse, Wisconsin. The attorney for the chiropractors Thomas Morris used the first chiropractic textbook to show the difference between the chiropractic’s treatment philosophy and that of osteopathy. [1]
Dr. Morikubo, a PSC graduate in Wisconsin, was found innocent of practicing medicine without a license on the grounds that he was practicing a new profession, chiropractic and only used his hands. This set an important precedent for other legal cases around the country. [1]
From then onwards, a very successful campaign developed by B.J. and Thomas Morris, starting with the Morikubo case and within 30 years led to over 3,300 court cases around the United States, with Morris winning most of them. Their central argument was that chiropractic was a separate and distinct profession with its own philosophy, science and art. [3]
Some 40 years prior to the commencement of the Palmer School of Chiropractic: the American Medical Association was founded in 1847 by Nathan Davis. From 1849, the AMA created a board on quack treatments with the purpose of protecting the public interest [4]. The AMA waged an anti-chiropractic campaign for many years, with the strongest period being from 1924-1949 under the direction of AMA secretary Morris Fishbein [5].
There were large philosophical disputes between the early chiropractors, especially between the Palmers and Langworthy. This led to the Palmers asking the State Governor to veto chiropractic legislation in Minnesota that would have been the first in the USA. The legislation had been sort by Langworthy and his supporters and had already passed through both houses. [1]
4.2 LEGAL BATTLES CONTINUED – 1943 CASE
There were other legal battles being fought by chiropractors and for chiropractic during the first 50 to 60 years of the profession. For example, in 1943, Spears Chiropractic Hospital was founded in Denver, Colorado. Founded by chiropractic pioneer Dr. Leo Spears, this was the largest chiropractic hospital in the world. They were unable to attain a state license to operate the hospital so Dr. Spears, claiming conspiracy took legal action against the Denver Medical Society and the Colorado State Board of Health. After seven-years of legal battling the Colorado Supreme Court found in favour of Spears (chiropractic). The Supreme Court, in 1950 ruled that chiropractic should not be limited or discriminated against and chiropractors can erect buildings and operate treatment facilities. They retroactively issued a license to the hospital backdated to 1943. That was not the end of the legal battles for Spears, with cases ongoing, with as many as four cases active at one time. [6]
4.3 THE AMERICAN MEDICAL ASSOCIATION CONSPIRACY
The publication of the book In the Public Interest by William Trever highlighted the tactics used by the AMA Committee on Quackery. He notes, the Committee had a goal of containing and elimination of the chiropractic profession and used numerous tactics to try to achieve their goal. [7]
The papers collected and then compiled into In the Public Interest became the basis of Wilk et al. vs. American Medical Association (AMA), the suit brought by Chester Wilk, D.C., of Illinois and five co-plaintiffs against the AMA and several co-defendants. After two trials, on September 25, 1987, Getzendanner issued her opinion that the AMA had violated Section 1, but not 2, of the Sherman Act, and that it had engaged in an unlawful conspiracy in restraint of trade ’to contain and eliminate the chiropractic profession. [7]
Judge Susan Getzendanner ruled that the AMA was guilty of an illegal conspiracy towards the profession of chiropractic.She set out a permeate injunction against the AMA. The AMA had to print the injunction and court findings within their own publication, the Journal of the American Medical Association. Throughout the course of the case, all of the other defendants actually reached out of court settlements. The settlements were used to cover legal costs of the chiropractors with a portion donated to the Kentuckiana Childrens Center. [5]
Judge Getzendanner ruled,
“I conclude that an injunction is necessary in this case. There are lingering effects of this conspiracy; the AMA has never acknowledged the lawlessness of its past conduct and in fact to this day maintains that it has always been in compliance with the antitrust laws.” [8]
The AMA was ordered to spread the Order of Injunction throughout the medical community via medical journals, hospitals, and other means. It was also instructed to “cease and desist” from interfering with the chiropractic professions rights. [8]
The AMA appealed but in 1990 the U.S. Court of Appeals and the U.S. Supreme Court upheld the decision of 1987. [5]
In spite of the Wilk case and other lawsuits, the AMA still has issues with the chiropractic profession. Mostly now the attacks are based on purported lack of safety of chiropractic procedures. [5]
4.4 THE SEVENTIES: THE DECADE OF INQUIRIES `DOWN UNDER’
There were four major inquiries, three of which were Government Inquiries and one a Parliamentary or All-Party Inquiry. The first was established in New South Wales on the 23rd of January 1973 reporting in 1974, the second, an All-party Parliamentary Inquiry of the Parliament of Victoria, which was established on 19th June 1973 and reported on 26th November 1975, the third, an Australian Government Inquiry established in August of 1974 and reported on 27th April 1977, and the fourth, the much respected New Zealand Governmental Commission of Inquiry, which was appointed on the 24th January 1978 and reported on 5th October 1979. [9]
We will examine here one State and two National Inquiries. The terms of reference and the manner of inquiry adopted by each of these bodies were of course dictated by the laws of each jurisdiction and the ’Terms of Reference‘ as laid down by the appointing body.
4.4.1 THE OSTEOPATHY, CHIROPRACTIC AND NATUROPATHY COMMITTEE OF VICTORIA, THE ‘WARD’ COMMITTEE
The actual committee system of inquiry is well explained in documents issued by the Parliament of Victoria. It is considered appropriate that some explanation be given before examining the actual reports and findings of the three pertinent ‘Boards of Inquiry’. The Committee system is a mechanism for gaining public input into matters before the Parliament. Input can come from individuals, organisations and businesses. [10]
While any member of the chiropractic profession may, as a responsible and competent professional, at some time be required to appear in a court room, either as a witness or indeed as an expert witness, (if so qualified by a well informed member of the legal profession) there are few who are called to speak for their profession before a legally constituted Commission or Committee of Inquiry. The responsibility of being spokesperson for a professional body makes the task of being a witness in a Court of Law pale into insignificance. The Victorian Parliament has, however, set out guidelines for people so appointed. It is important for a witness to understand his or her burden of responsibility. No 11 of the 20 items set out in the available guidelines really indicate the power ascribed to such a body as an ‘All-Party Committee’. The witness has to answer all the questions put to him or her. The answers should be in full and truthful. False evidence will lead to contempt charges. [11]
Just to make a pertinent matter clear to the reader, A Parliamentary Committee creates a report and recommendations about an issue after investigation and research. The committee is composed of a small number of members of the parliament. [12]
The Victorian Parliament Joint Select Committee (Osteopathy, Chiropractic and Naturopathy) Act 1973 set out the ‘Terms of Reference’ for this inquiry in Section 4 of the Act. The key points are as follows;
The Committee had the role to examine osteopathy, chiropractic and naturopathy practice in Victoria. They were then required to write a report with shall recommendations.
The committee had to look into:
- Aspects of practice such as treatments, techniques and overall method.
- The training of practitioners as well the overall standard and suitability of their education.
- The practice environment such as the facilities.
- The utilisation of each of the practices.
- The general safety of the treatment methods
- The need to regulate these practices, taking into account public safety, method of regulation and standards of knowledge needed to attain registration. [13]
The powers vested in the Joint Select Committee of Inquiry were outlined in no uncertain terms, to the spokesman for the Australian Chiropractors Association (Victorian Branch, ACA) at an early meeting with the Committee. It was a monumental task which the committee was undertaking and it obviously expected full cooperation from the professional associations that represented the interests of the professions under investigation. (Dr R. Graham Hunt, personal communication 2 Jun 2010)
After 2 years and 4 months of meetings and deliberations from the date of initial appointment of the committee (19th June 1973, the “Report from the Osteopathy, Chiropractic and Naturopathy Committee” was released on 27th November 1975.
The report contained the major recommendation that the chiropractic association had awaited for many years. Vis “The law should be amended to require the registration of chiropractors (Para.4.7.1)”.
The ‘Summary of Major Recommendations’ covering just on three pages of the report, also touched on other areas relating to Acupuncture, Advertising, Christian Science, Herbalism, Homoeopathy, Naturopathy, Osteopathy, Training, X-ray Equipment and some general matters of concern.
The introduction, which covered Chapter 1 of the report, gave some history relating to the enabling Act of Parliament, a request from the State Premier asking that particular investigations be undertaken relating to the use of x-ray equipment and details about the appointment of two special consultants, a renowned orthopaedic surgeon and a highly regarded academic.
Within the report the Committee notes that evidence presented was given under oath or affirmation. The Committee documented evidence from throughout Australia (Victoria, New South Wales, South Australia and Western Australia) and from numerous visiting foreign chiropractors.. The Committee themselves visited chiropractic training colleges, in Victoria and New South Wales.
- The Committee received a large number of submissions ranging from brief letters to long documents. The Committee quite quickly became aware that almost all submissions contained the same basic arguments and then were either for or against the recognition of practice. This was the case not only for chiropractic, but also osteopathy and naturopathy.)
The following organisations were asked to submit documents to the Committee:
- The Australian Chiropractors’ Association
- Australian Chiropractors’, Osteopaths, and Naturopathic Physicians’ Association Limited
- The Australian Physiotherapy Association
- Chiropractic College of Australasia
- National Association of Naturopaths, Osteopaths and Chiropractors, the (Vic. Branch)
- The United Chiropractors Association of Australasia
The Committee also examined various reports from Australia and other countries on issues related to the Inquiry. One of the challenges facing the Committee at first was deciding if a person was a chiropractor or an osteopath, although this was found to be limited to only Australian-trained practitioners.
Under the heading ’some philosophical bases of the report‘, we find the following pertinent comment:
- The lack of awareness of the Medical profession as to how chiropractors and other practitioners work was highlighted by the Committee. Most medical submissions were seemingly not based on first-hand experience but rather on hearsay or from patient stories.
- In total The Committee took 28 months to complete its’ activities and submit their report.
The lengthiest chapters in the Committee’s Report were not surprisingly devoted to the two major professions of chiropractic and osteopathy and to the area of x-ray, radiological studies and safety. In Chapter 4, titled Osteopathy and Chiropractic, some very pertinent comments are made. While we do not wish to take them out of context, it does certainly seem that even today, close to 35 years since the report was tabled in the Legislative Council of the Parliament of Victoria, the reported concerns prevail.
Well known and respected physicians informed the Committee that heavy reliance on drug therapy and lack of knowledge of conservative care had led to a gap in conventional medical treatment for neuro-muscular skeletal problems.
In the early days of the inquiry, the Committee was told by medical physicians of the numerous chiropractic patients that had been harmed or injured but the Committee found that these allegations of “chiropractic victims” were not founded. [13]
Committee members also did meet with the members of the New South Wales Inquiry into Registration of Chiropractors (The Teece Committee) on 9th November, 1973. The Committee also noted they had discussions with the Commonwealth Government committee (chaired by Webb) that was established in 1974. [13]
4.4.2 COMMITTEE OF INQUIRY INTO CHIROPRACTIC, OSTEOPATHY, HOMOEOPATHY AND NATUROPATHY – APRIL 1977, THE ‘WEBB’ COMMITTEE [93]
The Australian Minister for Health (The Honourable Dr D.N. Everingham, MHR) in February 1974 wrote to Professor Edwin Webb outlining the purpose of this committee which was that Chiropractic, osteopathy and naturopathy practices needed to be thoroughly investigated.
The investigation should focus on:
- the practices scientific basis ;
- how the practices work alongside other medical services
- whether to register the practice
The Minister was wary of the involved community citing a biased committee so he appointed two highly regarded scientists, a health administration expert and a finally a scientist to represent the Consumer Association of Australia. The Committee itself was established in August, 1974. [14]
It was ironic that the politician responsible for appointing the committee was a medical professional and had stated only eight months earlier that, “chiropractic (has) the same basis as scientology which has no known scientific basis.” [9] See Figure 3 (Age, 12thJuly 1973)
Standing: (Lt to Rt) Dr. C J Cummins (Committee Member), Dr. Bud Grove (National College extension Faculty), Dr. Lee Arnold (National College extension Faculty), Professor M J Rand, (Committee Member)
Seated: (Lt to Rt) Emeritus Professor R H Thorp (Committee Member), Emeritus Professor E C Webb (Chairman), Dr. R Graham Hunt (President, ACA), Dr. Andries M Kleynhans (Principal, International College of Chiropractic), Dr. Robert C Scott (ACA Federal Executive Member).
The Webb Committee used a different approach and possibly were more effective [9].
The Ward Committee received a total of 58 submissions [9], [13]. There was a poor response from private individuals whose submissions were sort via daily newspaper advertisements. The ACA felt that country newspapers should also have contained advertisements. [9]
By contrast a very open approach was used by the Webb Committee. Working with the Australian Department of Health advertisements asking for submissions were placed throughout Australia even before the Committee held its first meeting. The general public submitted 5,139 letters with just 17 arguing against chiropractic practice. In addition to the letters, 96 submissions were put to the Webb Committee. Of the 96, 41 professional bodies representing chiropractors, osteopaths, homoeopaths and naturopaths, and the medical profession made submissions. [9], [14]
The Webb Committee established a process fair and reasonable to the professions under study. All bodies that made submissions were given a complete list of all the submissions and were able to get access to those submissions and send in “rebuttals” as needed. [9]
Some of the principal recommendations of the Committee were:
- Registration was recommended.
- The use of the title ‘chiropractor’ was to be limited to registered persons.
- Uniform legislation throughout the Commonwealth.
- A single new Government supported educational course in a tertiary institution.
- Competency tests to be utilized to assess applicants’ ability, with provision for retraining courses where appropriate.
- Research funds should be made available for studies of chiropractic manipulation on treatment of disease and health maintenance. [14]
Not all the recommendations were favourable to chiropractic. The Committee recommended that the Government or the Registration Boards should not recognize as an accreditation body, the Australasian Council on Chiropractic Education. [14]
4.4.3 CHIROPRACTIC IN NEW ZEALAND: REPORT OF THE COMMISSION OF INQUIRY 1979 [15], [16]
The New Zealand Commission of Inquiry used an open hearings approach with cross examination also permitted. [9]
The Commission members from New Zealand visited the Preston Institute (Now part of the RMIT University) in Victoria and viewed its facilities as well as speaking with staff members and students. Within the report, comment is made about the meetings held with the Australasian Council on Chiropractic Education and with the International College of Chiropractic (ICC). The Commissioners seemed to appreciate the standards set by the Australasian Council on Chiropractic Education (ACCE) in the section of the report discussing the ICC and its Prinicipal. They noted that the course content aimed to match the standards set by the American Council on Chiropractic Education (ACCE) as well as being integrated within the Victorian system to ensure competent staff. Additionally the physical facilities were deemed of a satisfactory level. The Commission found that the chiropractic school was well accepted and integrated in to the Institute. They also found that Dr A. M. Kleynhans, the Principal, and Dr. T. R. Yochum, Head of the Roetgenology Department of the College were impressive representatives [9], [16]. The Commission did report favourably on the contribution of Emeritus Professor R R Andrew in his role as a member of the Course Advisory Committee for the ICC/PIT Program [16].
When the New Zealand Commissioners visited Melbourne, chiropractors were the main teachers for diagnosis subjects. The Commission reported this as ’a deficiency‘ although they did accept Dr Kleynhans explanation of the problem. Dr Kleynhans outlined that the College would immediately employ medical physicians to teach and head the diagnosis department if not for the ethical barriers imposed on physicians by the Victorian branch of the Australian Medical Association (AMA).
The Commission did note that the teaching of diagnosis skills focused on having the chiropractor recognize when they should not treat, but still felt a medically qualified person should be on the college staff to provide training in diagnosis
The Commission did meet with members of the Victorian Branch of the AMA and felt that perhaps the AMA ethical position was not completely inflexible and thought their overall attitude was more open-minded than that in New Zealand.
Judge Inglis and his fellow Committee members were not to be misled by any so called ’expert witness‘ representing the interests of the New Zealand Society of Physiotherapists.
Chapter 23 of the Commission Report has the title A North American Medical Practitioner. [16]
The chapter discusses Dr Murray Simon Katz who acted as an expert witness for the physiotherapy professions in New Zealand. His expenses and fares for attending were indeed paid for by Physiotherapists Society and the New Zealand Medical Association. He was the Chairman of the Committee of Health Affairs of the Consumers’ Association of Canada at the time of his appearance before the Commission.
Dr Katz’s presented oral evidence (with slides) over three days, as well as providing a large written document. He presented and was cross-examined on his evidence.
Dr Katz, who was a paediatrian in Montreal, claimed to be an important and internationally known expert and described himself as such, claiming his opinions were sought and heard by millions.
Dr Katz claimed he had worked with Provincial Ministries of Health as a consultant and had even written a Ontario government report.. However these claims were all found to be false. [16]
Documents were obtained from the Ministry of Health both in Manitoba and in Ontario refuting his claims. Dr Katz was discredited in every way and was shown to have acted dishonestly on a number of occasions. [16]
The Commission found it necessary to explain in some detail their reason for finding that the submissions and evidence given by Dr Katz were unreliable and entitled only to very limited weight. The Commission made it clear that they had a responsibility to make a report on the witness credibility, despite not expecting for such need to arise. It was revealed that Dr Katz has ‘adopted a series of dishonest stratagems to enable him to ’investigate chiropractic from the inside. For example he submitted false information to the Canadian Memorial Chiropractic in order to gain a place. The commission decided his behavior was fraudulent. [16]
Extracts from: – ; Chiropractic in New Zealand 1979 [15], [16]
SUMMARY OF PRINCIPAL FINDINGS
- Chiropractic is a branch of the healing arts specialising in the correction by spinal manual therapy of what chiropractors identify as biomechanical disorders of the spinal column. They carry out spinal diagnosis and therapy at a sophisticated and refined level.
- Chiropractors are the only health practitioners who are necessarily equipped by their education and training to carry out spinal manual therapy.
- Spinal manual therapy in the hands of a registered chiropractor is safe.
- The education and training of a registered chiropractor are sufficient to enable him/her to determine whether there are contra-indications to spinal manual therapy in a particular case, and whether the patient should have medical care instead of or as well as chiropractic care.
- Spinal manual therapy can be effective in relieving musculoskeletal symptoms, such as back pain and other symptoms known to respond to such therapy, such as migraine.
- In a limited number of cases where there are organic and/or visceral symptoms, chiropractic treatment may provide relief, but this is unpredictable, and in such cases the patient should be under concurrent medical care if that is practicable.
- In the public interest and in the interests of patients, there must be no impediment to full professional cooperation between chiropractors and medical practitioners.
- The responsibility for spinal manual therapy training, because of its specialized nature, should lie with the chiropractic profession. Part time or vacation courses in spinal manual therapy for other health professionals should not be encouraged”. [15], [16]
4.5 A QUEENSLAND STORY: CHANGES IN TRADING PRACTICES
We will look to information provided by the Australian Competition and Consumer Commission (ACCC) to clarify the situation. From 1995, competitive conduct rules were applied to professions in Australia following the passage of the “State and Territory Competition Policy Reform Acts of 1995”. These rules are essentially a prohibition on restrictive trading practices and applied to the medical profession. [17]
Before this enactment, the medical profession was effectively sheltered from the operation of the Trade Practices Act and they were able to engage in activities that were prohibited in other commercial operations. The Reform Acts ensured that the professions and their professional associations had to make sure that their practices were law compliant.
The Trade Practices Act (TPA) aims to ensure that competitors do not collude or engage in anti-competitive practices. [17]
Dr Keith Simpson, Chair, of the Trade Practices Committee, of Chiropractors’ Association Australia (National) Limited outlined a brief history of these matters in Dynamic Chiropractic in March of 1999) [18]. The major part of that information is provided hereunder:
In late 1992 the Chiropractors’ Association of Australia (CAA) met informally with the Australian Competition and Consumer Commission (ACCC). The meetings produced an article known as “The AMA and Chiropractic: a Trade Practices Viewpoint”.
The CAA had to take some time to educate the ACCC about the anticompetitive policies of the Australian medical profession. The Wilk case from the USA provided much of the information needed to inform the ACCC. The ACCC decided that further investigation was needed into the Australian Medical Association (AMA) The ACCC noted that the AMA’s 1977 chiropractic policy did essential boycott chiropractors and others. The 1977 policy made it clear that the AMA refuses to recognise chiropractic and made it unethical for medical practitioners to associate professionally with chiropractors.
From 1981 the Federal AMA changed their policy to remove the “unethical clause” However this change was not adopted by members or the state branches, as the 1982 Victorian branch rules still maintained the unethical clause. The policy changes were not of concern to the ACCC until July 1996 when the professions came under the TPA.
The ACCC then analysed the AMA policies to check for a breach of the TPA. The ACCC contacted all levels of the AMA to check if any activities were deemed to prohibit inter-professional relationships between chiropractors and medical professionals. The AMA informed that individual members were free to decide on their own professional associations. [16]
4.6 INSURANCE CHALLENGES IN THE USA
In 2002 there were federal law suites in the USA where the chiropractic profession was battling high profile Insurance companies (Trigon Blue Cross/ Blue Shield) and the federal government. [19]
The Federal government lawsuit involved the American Chiropractic Association (ACA) and the Health Care Financing Administration (HCFA) over the HCFA plan to allow spinal manipulation to be performed by medical professionals, osteopaths and physiotherapists in place of a chiropractor. [19], [20], [21]
The result of the ACA vs. HCFA lawsuit was that the HCFA reversed its’ earlier policy that allowed physiotherapists to provide Medicare reimbursed spinal manipulation based on physiotherapists not being physicians. The HCFA also stated that Medicare managed care organizations and Medicare Choice plans must provide cover for spinal manipulation by chiropractors and not substitute in other providers. [19], [22]
The ACA v. Blue Cross/Blue Shield (BCBS) legal battle was due to (1) the anti- chiropractic reimbursement policies of BCBS and (2) blatant discriminatory practices of BCBS that imply that chiropractors are inferior to other doctors [19]. The court found in favour of BCBS in this instance. [23]
4.7 BARRET VS KOREN CASE
4.7.1 TEDD KOREN DC WINS MAJOR COURT BATTLE
Barrett vs Koren was a case in which Dr. Steven Barrett filed a defamation lawsuit against Tedd Koren for statements published by Koren.
In a 2001 newsletter Koren had published that Dr Barrett was ’de-licensed‘, involved in a $10 million lawsuit,’ called him a ’Quackpot. Barrett filed the lawsuit in August 2002, seeking unspecified damages from Koren and his company, Koren Publications. Dr. Tedd Koren in his defense claimed that he could publish the statements as he had a First Amendment right and that they were true and not defamatory.
To add some context to this case; Dr Tedd Koren DC is a well-known chiropractor throughout the USA due to his writing, publications, educational materials and other activities. Dr Stephen Barrett is a widely known and long-time opponent of chiropractic.
In August 2004, a local arbitration panel awarded Barrett $16500 after finding in his favour. However Koren appealed that decision.
At appeal in October 2005, the Judge made the decision to throw the case out after 3 days of trial. Officially he granted a “direct verdict” to the jury, noting there was insufficient evidence provided by Barrettt to support his claims. The case hinged around the claims made by Barrett. Over the news he has portrayed himself as an expert on quackery and has been a staunch opponent of natural healthcare.
During cross-examination proceedings of the trial, it was identified that Barrett was not a Medical Board Certified psychiatrist as he did not pass the exam. This called into question his ability to give ‘expert testimony’ as he had claimed to have given at other times. Also with no legal background, he claimed to have legal expertise.
The most damaging finding against Barrett though was that he had not won a single lawsuit at trial despite filing 40 similar suits throughout the USA over the past few years. Dr Barrett also revealed his links with the AMA, Federal Trade Commission (FTC) and the Food and Drug Administration (FDA). [24]
4.8 BLUE CROSS AND BLUE SHIELD 2007
4.8.1 SOLOMON, ET AL. V. BLUE CROSS AND BLUE SHIELD PLANS, ET AL.
On April 28th 2007 a case which was brought against the Blue Cross and Blue Shield Association et al., by Dr. Jeffrey Solomon et al., was decided in the United States District Court for the Southern District of Florida, Miami-Dade County. [25]
The case details are such that Dr. Jeffrey Solomon sued 23 Blue Cross and Blue Shield Plans. He sued them as an individual and also in a class action on behalf of other physicians and organisations. The main complaint against the insurance companies relates to issues of reimbursement, specifically they claimed systematic cheating in that certain reimbursable services were not paid for; services were recoded to a lower reimbursement level and payments were deliberately delayed among others [25], [26]. The outcome of the case is that it was finally settled for $128 Million. [25]
4.9 PALMER AND ITS ALUMNI: AN INSIDE JOB 2008 AND BEYOND
It does seem that members of the chiropractic profession will never be content just to be involved with litigation that involves outside bodies. It does seem that there is always an element of ’Enemies Without and Within!’
4.9.1 PALMER, 60 CHIROPRACTORS SUE FORMER ALUMNI ASSOCIATION
The story, carried in local newspapers on October 22, 2009 is outlined as follows: [27]
The issue between the Palmer College of Chiropractic (PCC) and the Colleges’ former alumni association arose in the late 1990s when the Alumni voiced its’ lack of confidence in the College leadership. Relations reached a breaking point in late 2004 over a disagreement on whether the Alumni should have a seat on the Board of trustees. In 2005 PCC started their own Alumni association and severed ties with the original Alumni.
PCC started legal action in early 2005, with a second suit launched in 2007. The first lawsuit was won by the Alumni and it freed up over $1Million dollars to the Alumni. PCC appealed but the Iowa Supreme court did not review the lower court decision. The second case was withdrawn after some of the Alumni issued formal apologies to the PCC.
The latest legal action in 2009 involves PCC and 60 chiropractors again suing the “Alumni” with the intent to assess the groups assets, stop it from spending money and ultimately dissolve it. [27]
4.10 A MODERN DAY STRUGGLE FOR JUSTICE
4.10.1 INSURANCE LAWS, ISSUES AND LITIGATION
The Arizona Chiropractic Society (ACS) has for over 20 years worked to ensure that there are chiropractic Insurance Equality Laws in the state. The ACS has also been involved in the class action suit against BCBS of Arizona, as well as a lawsuit against United Healthcare (UHC) which accuses UHC of fraud in paying fees and not covering medically necessary procedures. [28]
In 2011, with the ACS giving support, two chiropractors and a patient filed a suit against the Arizona Department of Insurance (ADOI) for allegedly failing to ensure the proper enforcement of the chiropractic insurance equality laws in the state. The legal action seeks to force ADOI to administer the law which they are responsible for. The lack of enforcement has seen the chiropractors and patients in the state discriminated against by the insurance companies and their payment schemes. At present the system allows the insurance companies to charge higher co-payments for chiropractic services than for medical services. This practice limits access to chiropractic services by making it more expensive than medical services for the same condition and procedure. In response to the lawsuit ADOI filed a motion to dismiss the case, with the chiropractors then filing their own response to the dismissal motion. The case is still ongoing. [28], [29]
COMMENT:
There are a multitude of matters relating to health insurance that are before the courts in the United States of America at this time. The above matters confronting the chiropractic profession in Arizona are taken as a typical example. The Website of the ACS will obviously be keeping any interested person well informed on progress of the action taken by the Society and its legal advisor.
4.11 HE FUTURE 2014 FROM HAWAII STATE CHIROPRACTIC ASSOCIATION INC
4.11.1 THE AMERICAN CHIROPRACTIC ASSOCIATION AND HEALTH CARE REFORM
From January 1, 2014, discrimination against any health care service provider is strictly not allowed under new laws. This is provided the health care provider is only operating within their relevant state law and scope of practice. This was exciting news for the Hawaii State Chiropractic Association (HSCA) which has been fighting for many years on this issue.
To assist in achieving their plans the ACA used the lobbying firm of a former member of parliament. This action followed on from the Chiropractic Summit of 2007 that sort to ensure that there was only one message being sent by the profession to the parliament. Of note is the work of John Falardeau and Rick Miller who worked long and tirelessly to get the non- discrimination language into and then kept within the provisions of the bill.
These changes are occurring at the level of the Federal government and could supersede existing state level laws. The work of the ACA at the federal government level is significant in that most previous battles have been at the state to state level. [30]
Comment:
If indeed all of the provisions that are mentioned here come into effect there should be no more discriminatory behaviour on behalf of Insurance groups like that we have seen in Arizona, Pennsylvania and in Florida. That is just touching upon the few States that we have mentioned and used as examples from amongst the many which have been affected.
RESIDENT OBAMA SIGNS FINAL HEALTH CARE REFORM BILL:
On March 23 President Obama signed into law the final health care reform bill. Notably this bill includes some clauses that protect patient access to chiropractors. In particular the provision known as the “Harkin Amendment” ensures “provider non-discrimination” which the ACA has advocated for a long time. The provision is named for Iowa Democrat Sen. Tom Harkin who supported the bill.
This represents a historic moment for the chiropractic profession, in that a federal law now exists that prevents insurance companies from discriminating against chiropractors. Prior to this bill provider discrimination had been possible based on the providers license.
Chiropractic also has some further positive involvement two other provisions within the new law. These are (1) interdisciplinary community health teams can now have members that are chiropractors; and (2) Chiropractors are specifically included as part of the health workforce as health professionals and part of the new “National Health Care Workforce Commission”. [30]
References
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