*1 Aрp 342 124 Mich GENERAL v BENO ATTORNEY 3, 1982, Lansing. August at Submitted Docket No. 61368. Decided 21, 1983. appeal applied Leave to for. March Bell, J., relying the on Court, Ingham Robert Holmes Circuit The acting response complaint chiropractic to a act and former General, injunction preliminary Attorney by issued a filed the Beño, D.C., chiropractor, from enjoining a licensed James J. scope alleged the of engaging to be outside in certain activities injunction chiropractic. remained in effect Thе of After the the Public Health Code. date of until the effective effective, court, on defendant’s Public Health Code became motion, preliminary injunction and remanded dissolved Regulation, Licensing Department Board of to the matter concerning opinion advisory whether the Chiropractic for an of by violative of the new procedures defendant were conducted Following chiropractic practice. provisions regarding hear- code oрinion, ings, and the circuit court an the board entered challenged finding opinion subsequently that issued an scope by outside the defendant were conducted Code. An chiropractic practice in the Public Health as defined permanently enjoining en- defendant from entered order was practices. appeals. challenged Held: gaging the Administrative Health Code nor 1. Neither the Public a case to a circuit court to remand Procedures Act authorizes advisory opinion. agency The action taken for an an request might properly as a more be characterized circuit court agency. declaratory ruling The function for a rulings to should have been to review board’s circuit court supported contrary to law and determine whether were material, competent, on the whole evidence substantial record. chiropractic practice of 2. The Public Health Code defines the including diagnoses to determine the existence
_as [1] [2-7] Scope practice 2 Am Jur 132. Am Jur 2d, References Administrative Law §§ 2d, Physicians, chiropractic. for Points in Headnotes Surgeons, 16 ALR4th 527, and Other 766. 58. Healers §§ interference, misalignments produce nerve x-raying indicating necessity care. purpose conceivably of locat- for the be elbow cannot and therefore ing spinal vertebrae subluxations or *2 by the statute. is not authorized may chiropractor correctly not that a ruled 3. The trial court examination, may urine general physical not collect perform a may diagnose analysis other specimens and not for and hair spine. misalignments Fur- spinal of subluxations or than ther, correctly no the defendant had ruled that the court also indicating pre-employment authority record to execute a complete physical patient passed examination. had current, diathermy, galvanic and ultrasound 4. The use of chiropractic prohibited. practice of and are outside the sell, dispense, prescribe chiropractor may vita- or 5. A not supplements patient. or to a mins food Affirmed as modified. Danhof, C.J., part part. He and dissented concurred may dispense prescribe chiropractors vita- or hold that
would chiropractors may supplements check a and that mins and food respiration patient’s pulse, pressure, to deter- or rate of blood patients elsewhere. mine whether to refer their
Opinion of the Court — — — of Chiro- Law Courts Board 1. Health Administrative practic — Remand. Proce- Health nor the Administrative Neither the Public Code a case to the circuit court to remand dures Act authorizes a Chiropractic Licensing Regulation, Department and Board rather, advisory opinion; review the circuit court should for an they rulings were the board’s in the case determine material, competent, contrary supported by and to law and (MCL seq., 24.201 et evidence on the whole rеcord substantial seq.). seq., 333.16401et MSA 3.560[101] 14.15[16401] X-Rays. Chiropractic — — — 2. Health Health Code Public purpose chiropractor x-ray patient only may for the A locating spinal vertebrae subluxations or spine; x-raying authorized is not human of a elbow (MCL 14.15[16401][b][iii]). 333.16401[b][iii];MSA Chiropractic Physical — — 3. Health Examinations. examination, general physical chiropractor may perform a A not analysis, not specimens not collect urine and hair misalignments of diagnose or other than Opinion of the Court pre-employment authority spine, to execute a has no complete physical passed indicating has that a record examination. — Chiropractic — — 4. Galvanic Public Health Code Health Diathermy — — Ultrasound. Current current, diathermy, galvanic ultrasound are The use of proce- the use of such outside the prohibited by by chiropractors Health Code the Public dures (MCL 14.15[16401][b][iii]). 333.16401[b][iii];MSA Supplements. Chiropractic — — — 5. Health Vitamins Food sell, prescribe chiropractor may dispense; vitamins or A рatient. supplements to a food by Danhof, J. C. and Partial Dissent Partial Concurrence Chiropractic — — — — Vitamins 6. Health Public Health Code Supplements — Act. Administrative Procedures Food speciScally authorizes The Public Health Code and, chiropractors’ required give nutritional advice view area, dispense expertise be allowed to should (MCL 333.16401[b][iii]; supplements prescribe and food vitamins *3 338.12005). AC, 9, Supp 14.15[16401)[b][iü];1979 B MSA — Chiropractic — — — Rate of Blood Pressure 7. Health Pulse Respiration. pаtient’s pulse, Chiropractors permitted should be to check respiration pressure, whether to or rate of to determine blood patients refer their elsewhere if for no other reason. Attorney Kelley, General, Louis J. Frank J. Hoffman, Caruso, General, Max R. Solicitor plaintiff. Jr., General, for Assistant Dean, Robert defendant. C.J., M. R. H.
Before: and J. Danhof, Gillis JJ. Knoblock,* D.C., Beño, Defendant, H. J.
J. J. James Gillis, right chiropractor, appeals as of from licensed engaging enjoining in him circuit court order from * Appeals by assignment. judge, sitting Circuit on the Court of Attorney General Opinion of the Court alleged scope certain activities be outside the chiropractic. practice of the 1977, September, plaintiff
In filed a complaint seeking to enjoin engaging defendant cer- practices. tain At time the action was com- menced, chiropractic defined act, former MCL 338.151 et seq.; seq. 14.591 et act MSA former was subse- quently repealed replaced Michigan Code, 368, Health 1978 PA Public effective Sep- 30, 1978, MCL 333.1101 et tember MSA 14.15 (1101) seq. See, now, MCL 333.16401 et seq.; 14.15(16401) seq.
Following hearing, court, an initial the circuit 1978, January on issued a preliminary injunc- which tion remained effect until the effective date Health Public Code. After the code effective, court, became the circuit on motion of defendant, the preliminary dissolved injunction and remanded matter Department to the Licensing and Regulation, Board Chiropractic (hereinafter board) for an "advisory opinion” concerning conducted by defendant were violative of new provi- code regarding chiropractic sions practice.
Hearings were held before an administrative law examiner who proposed findings issued and conclu- sions of law. The board reviewed the matter on the and, 27, 1981, record on January an opin- entered ion which separately addressed of the prac- each tices conducted by defendant. 2, 1981,
On November court the circuit issued *4 opinion challenged an finding cоnducted by scope defendant were outside the as defined the Public 19, Health Code. An order entered November 1981, from permanently enjoining defendant en- App 342 124 Mich
346 op Opinion ap- practices. challenged gaging peals. although the circuit court note that
Initially, we "advisory for an agency case to the remanded Health Code nothing the Public in either opinion”, (APA), Act MCL Procedures or the Administrative 3.560(101) seq., authorizes MSA 24.201 opinion, action taken In our procedure. a such more characterized properly court is the trial by ruling from the request declaratory for a a as in Greenfield opinion Justice Levin’s see agency, Co, Highway Dep't, v State Inc Construction (1978). 172, 221-222; 261 NW2d Review governed have been decision should of the board’s 3.560(163): 24.263; MSA MCL by agency request person, an of an interested "On declaratory ruling applicability as to an a issue facts a statute administered state of actual agency An agency. rule order of the agency оr of a request such and prescribe by rule the form for shall submission, procedure disposi- for its consideration binding declaratory ruling agency on the A is tion. it it is or set aside person requesting unless altered change retroactively by any agency court. An pre- declaratory ruling, nothing in this subsection but agency prospectively changing an declara- vents ruling. judicial declaratory ruling subject A tory final decision agency review the same manner as an or order a contested сase.” of the circuit court should have function rulings been to review the board’s to determine supported law contrary were material, competent, evidence and substantial 24.306; 3.560(206); on the MCL whole record. Health, 108 Mich Dep’t Hutchinson v of Mental (1981). 729; NW2d 856 *5 Attorney General op Opinion chiropractic” in MCL "practice of defined The 14.15(16401): 333.16401; MSA "(b) discipline chiropractic’ means that 'Practice of healing the which deals with the within arts nervous its relationship spinal to column and system аnd its interrelationship with the systems. of body other Practice chiropractic includes:
"(i) Diagnosis, including spinal analysis, to determine misalignments or spinal of subluxations the existence interference, indicating the neces- produce nerve chiropractic care. sity for "(ii) spinal misa- adjustment of subluxations or The for the estab- lignments and related bones and tissues utilizing integrity the inherent recu- of neural lishment perative powers body the for restoration and mainte- of of health. nanсe "(iii) instruments, analytical nutritional The use of advice, adjustment appara- exercise and rehabilitative pursu- regulated by promulgated by the board tus rules x-ray
ant to section use of machines locating patients purpose the examination of for the of hu- spinal subluxations or vertebrae spine. of does not include man surgical procedures, performance of incisive performance procedure requiring of instru- an invasive mentation, drugs or dispensing prescribing or or medicine.” appeal, we must whether
On determine defendant specific procedures conducted gov- provisions outside Public Health Code’s erning chiropractic care. patient’s el- and treatment x-ray,
Diagnosis, bow hear- at testified the administrative
ing that he elbow x-rays took four in order and determine diagnostic obtain data problem through chiro- was treatable practic defen- procedures. enjoined The trial court 124 Mich Opinion of the Court "[djiagnosing diagnose attempting
dant from оr spinal misalignments other than or produce interference”, which nerve and from "[treating attempting x-raying treat, or attempting x-ray an elbow”. 16401(l)(b)(i),diagnosis § the limited
Under is for purpose determining existence *6 misalignments produce subluxations or nerve indicating necessity chiroprac- interference, for recognize tic care. We that nerve interference spinal produce symptoms efferent the column parts body. in other Where a indi- pain chiropractor may elbow, cates in his only purpose elbow, еxamine the determining but for the of symptom by is caused spine. nerve interference related to the The chiro- practor may remove the nerve interference through spinal adjustment, directly but treat the elbow.
Concerning patient’s x-ray elbow, of a 16401(l)(b)(iii) specifically x-ray § limits the use of patients machines in the examination of "for the purpose locating spinal subluxations or misa- ligned spine”. vertebrae of the human x- Since the ray patient’s conceivably of a cannot elbow be for purpose locating spinal subluxations by vertebrae, it is not authorized statute. physical
General examination complete physical Defendant conducted a exami- patient, including nation of the a check of the patient’s pulse, respiration, pressure, and blood lungs, eyes, heart, and an examination of the mouth, throat, addition, and reflexes. In defendant sample laboratory obtained a urine and hair for analysis. physical cоmplete The trial court held that a "goes beyond far,
examination far Attorney 349 op Opinion the Court guidelines chiroprac- for the statutory tic”. statute, is for the limited diagnosis
Under
determining
the existence
purpose
misalignments
produce
which
argues
interference. Defendant
that differen-
nerve
necessary
are
to deter-
diagnostic techniques
tial
problems
health
patient’s
mine whether
This
argu-
treatment.
amenable
rejected by
ment
considered and
was
Judge,
Court
Gеneral v Recorder’s
92
lv den
(1979),
42, 55-56; 285
Mich
NW2d
(1980),
where it was
407 Mich
stated:
"Appellant
duty
contends that he had a
to ascertain
type
of a
to which
whether a
chiropractic might
ailments were
Mulder,
applied,
be
Janssen v
(1925),
183;
Although the former that case was decided under statute, interpretation remains quoted above fully applicable under the new code. also contends that an evaluation patient’s overall health is discover necessary of a safety
health risks which affect may patient we under treatment. While 124 Opinion general gained
agree the information that speci- analysis techniques diagnostic of human rendering important may the safe be mens chiropractic licensing nothing care, there is chiropractor requiring to be trained a statute evaluating general physical patient’s condition a assessing involved. For exam- the health risks discerning chiropractor ple, is not trained a lungs, in a heart abnormalities interpreting chiropractor report. urinalysis If a a patient’s general physical concerned about the is condition, patient physi- to a he should refer in such matters. cian trained many notes, true, that It is as defendant diagnostic techniques not, in and of differential dangerous patiеnt. However, themselves, to the patient may potential harm occurs because capable chiropractor is led to believe that the be spine. detecting unrelated to the health ailments physi- patient may Thus, the believe that no other appropri- may problems cal exist and fail seek ate medical care. recognized discipline chiropractic is a
While healing by statute, arts, remains, within the it correctly profession. limited health The trial court gen- chiropractor perform may ruled that a eral not physical examination, urine not collect specimens analysis, and hair diagnose other than or misa- lignments spine. addition, the court In correctly authority ruled that defendant had no indicating pre-employment execute a record passed complete physical had exami- nation. galvanic diathermy, current,
Use of and ultra- *8 sound galvanic complains
Plaintiff next that the use of Opinion of Court diagnostic ultrasound for current, and diathermy, scope are outside purposes and treatment that the statute found chiropractic. The board not for diagnosis, but their use authorizes consti- court ruled that The circuit treatment. instrumenta- requiring procedures tuted "invasive that, therefore, procedures are such tion” and act. MCL prohibited expressly 14.15(16401)(l)(b)(iii). MSA 333.16401(l)(b)(iii); decide whether these unnecessary it to We find In the activi- opinion, our are invasive. practices practice physical included within ties are 333.17801(l)(b); MSA MCL therapy. 14.15(17801)(l)(b). is nоt person permitted A therapy unless engage practice physical or otherwise au- therapist, as a physical licensed are not the act. Since thorized these express perform authorization given an find therapists, as we that procedures, physical are outside the chiro- such are practic prohibited.1 dispensing prescribing Sale, or of vitamins food supplements compound prescribed a vitamin liga-
known "nuclix” to the rebuild as Expert ments in his established back. testimony special di- nuclix considered a food for etary "drug” pharmacy use not a under Michigan.2 laws drug State of sell, circuit court held that a chiropractor may dispense, prescribe We patient. vitamins agree. 16401(l)(b)(iii) chiropractor
Section authorizes description prerequisites training For a of the educational and AC, required chiropractor of one who see 1979 seeks licensure as Supp 338.12005, R 12006. 14.15(17703). 333.17703; See MCL *9 App
352
124
342
Mich
Opinion of the Court
advice,
give
nutritional
but does not specifically
address the use of
supplements.
vitamins
food
Attorney General v Recorder's
Court
Judge,
Court
supra,
addressed
the question
whether a chiropractor
could dispense various non-
prescription
colds, headaches,
medicines
for
pain,
congestion,
nasal
and topical medicine
scrape
rash and a
on the arm. The Court stated as
follows:
Attorney
Raguckas,
General v
"In
618,
84
App
624, 625;
(1978),
tion acupuncture. in Raguckas "While was concerned with prescription durgs, we conclude that the rationale of that case applicable is likewise to non-prescription med- icines. Wilson, State v "In 916; 11 Wash 279 P2d
(1974), Washington Supreme Court ruled that chiro- practors may give not prescribe minerals, vitamins supplements. or food The Court noted that while these items are they may, nevertheless, prescription available withоut in retail stores dangerous be when improperly used. agree "We with this analysis and conclude that Michigan Legislature did not intend any use given medicine internally or externally for the treatment of disease or other human ailment.” 92 Mich App 54-55.
Recorder's Court Judge involved non-prescrip- tion medicines rather than vitamins or sup- food plements. Nonetheless, the same concerns about the danger of improper present use are instant case. Chiropractors are not required to be disciplined in the use of vitamins supple- and food ments. While these materials "drugs” are not Opinion of the Court Code, we the Public Health regulated danger in- potential notice of the judicial take This concern misused. they are volved when Mississippi Medical State in Norville v voiced 1978): Ass’n, (Miss, 364 So 2d none of strenuously that since argued "Norville has prescription and require medical involved the vitamins layman over the counter purchased by any may be stores, should not be denomi- of such vitamins most use *10 fully cognizant that We are 'practice of medicine.’ nated any vitamins and that layman can obtain such any of or sale of vitamins. Purchase can sell such retailer condemned the vice which is is not however vitamins which consti- condemned and that here. Rather the vice (1) prescrip- practice of medicine is tutes the unlicensed (3) (2) disease, cure, vitamins, an ailment tion of (4) compensation. present does not sim- chiropractor on the facts "The for them as a customer who asks ply sell vitamins to Rather, patient represents he to a who does a retailer. vitamins will cure a disease has come to him that such Further, the relative or friend who or ailment. unlike for nutrition that someone take vitamins recommends colds, prevent expects neither nor receives or to and 'advice,’ chiropractor compensation for such in any patient to take professional capacity advisеs disease, compensa- charges for the ailment or vitamins advice, to think cause the tion for such This is thereby his ailment or disease will be cured. amply danger is dem- vice condemned and the of such by onstrated the record.” pro- care chiropractor, as a licensed health
vider, pa- his relationship in unique stands Norville, in dangers expressed In view of the tient. that, intended Legislature opinion it is our had the sell, or prescribe, chiropractors to authorize it would dispense supplements, vitamins and food provided. have so specifically 342 Mich by Danhof, Partial C.J. Partial Concurrence Dissent Affirmed as modified. Knoblock, J.,
M. R. concurred. in (dissenting part concurring Danhof, C.J. in part). Although agree I with the result reached I find that I majority respects, most their agree cannot with treatment of the issue concerning ability chiropractors to recom- patients supplements mend to their the use of food and vitamins. in question regulated
The items
are not
controlled
section of the
Health
substances
Public
14.15(7101)
Code. MCL 333.7101 seq.
contrary,
readily
On
accessible
unregu-
most health food stores and
other
many
lated retail establishments.
The majority,
relying
Judge,
General v Recorder’s Court
on
(1979),
App 42;
In my opinion, majority’s ney Judge, General v Recorder’s Court supra, *11 misplaced. That oрinion involved the act, former MCL 338.151 et seq.; MSA 14.591 et seq. The former act was replaced occupa- tions Code, section of the Public Health MCL 14.15(16101) 333.16101 seq., which, act, unlike the former specifically authorizes chiro- advice; practors to give nutritional MCL 14.15(16401)(b)(iii). 333.16401(b)(iii); MSA Further- more, assertion, contrary to the chiro- majority’s practors required are now to be trained and tested in subjects designed provide which are to them e.g., expertise with in this area anatomy, physiol- ogy, chemistry, public pathology, microbiology, Beno v by Danhop, and Partial Partial Concurrence Dissent C.J. nutrition). health, rehabilitative AC, Supp R 338.12005. v Mississippi Norville The on majority’s reliance Medical (Miss, State 1978), So 2d 1084 Ass'n improper. Mississippi also statute which was in that specifically prohibited involved case chiro practors drugs from using treatment. Miss Code Furthermore, Ann 73-6-1. statute broadly § drugs defined term to include "all medicines for internal or external use for man or beast”. Code Ann Miss 1-3-7. The Court ruled that § foregoing a strong lеgislative evinced intent preclude chiropractors from prescribing any sub stance for use. internal prohibition.
Our statute contains no similar On above, contrary, Legislature as noted has authorized specifically chiropractors give nutri- Furthermore, tional advice. in view of the wide- spread items, of these availability the fact chiropractors that are required now to be disci- area, plined this I opinion am of the that chiropractors dispense presсribe vitamins and food supplements.
I also disagree, part, with majority’s treatment of the issue concerning chiro- practors patient’s check pulse, pres- blood sure, or rate respiration. The majority notes if that chiropractors are concerned about their condition, physical should refer them to physicians. Even if the requires statute finding precluded checking patients’ their pulse, pressure, blood respiration purposes determining whether it is safe to engage exercises, in manipulative chiro- practors should permitted at minimum be utilize those procedures to determine whether their patients refer elsewhere.