100 Mich. App. 254 | Mich. Ct. App. | 1980
In this cause summary judgment was entered in favor of the defendants on the ground that the complaint for declaratory and injunctive relief failed to state a claim upon which relief can be granted. GCR 1963, 117.2(1). Plaintiff appeals.
Plaintiff brought suit in the circuit court challenging certain provisions of the Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq., with respect to the practice of chiropractic. The primary challenge is to § 16401(l)(b) of the code, which excludes from the practice of chiropractic "the performance of incisive surgical procedures, the performance of an invasive procedure requiring instrumentation, or the dispensing or prescribing of drugs or medicine”. MCL 333.16401(l)(b)(iii); MSA 14.15(16401)(l)(b)(iii).
On appeal, plaintiff argues that summary judgment was improperly granted because his complaint alleged that subsection 16401(l)(b)(iii) deprives him of the right to practice his profession without due process of law, that it denies him equal protection of the law, and that it is unconstitutionally vague.
The purpose of a motion for summary judgment based on GCR 1963, 117.2(1) is to test the complaint to determine whether the plaintiff has pled facts which support elements for a cause of action. The scope of the examination is confined to the pleadings, and factual allegations in the complaint are taken as true, along with any inferences and conclusions which may fairly be drawn from the facts alleged. Sullivan v The Thomas Organization,
Under GCR 1963, 521.1, declaratory relief is available where an actual controversy exists, that is, where such relief is necessary to guide a plaintiffs future conduct in order to preserve his legal rights. Shavers v Attorney General, 402 Mich 554, 588-589; 267 NW2d 72 (1978). However, before affirmative declaratory relief can be granted, it is essential that a plaintiff, at a minimum, pleads facts entitling him to the judgment he seeks. Kuhn v East Detroit, 50 Mich App 502; 213 NW2d 599 (1973).
The Legislature has limited the practice of chiropractic to the following functions:
"(i) Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the neces-' sity for chiropractic care.
"(ii) The adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.
"(ni) The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to § 16423, and the use of x-ray machines in the examination of patients for „the purpose of locating spinal subluxations or misaligned vertebrae of the hu*258 man spine.” MCL 333.16401(l)(b); MSA 14.15(16401)(l)(b).
Plaintiffs complaint does not allege facts which would support the conclusion that it is impossible for him to perform these functions which the Legislature has included in the practice of chiropractic without the use of incisive surgical procedures or invasive procedures requiring instrumentation or without the authority to dispense or prescribe drugs or medicine. It will happen on occasion, of course, that treatment of a patient or even proper diagnosis of a patient’s complaint will require medical or surgical procedures excluded from the practice of chiropractic. Moreover, it may be that the required procedures are within the competence of the modern day practitioner of chiropractic because of the scope of his training. This, however, does not create a constitutional bar. precluding the Legislature from excluding those procedures from the practice of chiropractic. As the Supreme Court stated in People v Lewis, 233 Mich 240, 244-245; 206 NW 553 (1925):
"No school may fix a standard of education, and thereby entitle its graduates to practice any branch of the healing arts, regardless of legislation, and no graduate can of right demand that legislation accord with only what he has been taught. The law recognizes chiropractic adjustments or treatments and fixes the standard of knowledge deemed essential to a proper practice thereof.”
Plaintiff also alleges that the statute denies him equal protection of the laws because he is not allowed to perform medical and surgical procedures which may be performed by other practitioners of medicine licensed by the state. There are no
Finally, plaintiffs contention that the statute is unconstitutionally vague is supported solely by the allegation that he is unable to determine the meaning of certain terms in the statute.
The trial court properly ruled that the plaintiff has alleged no facts which would sustain his claim that the Legislature has acted unconstitutionally in enacting the foregoing sections of the Public Health Code. Plaintiff’s complaint is more properly an attack on the propriety of the legislative decision to impose rather extensive limitations on the practice of chiropractic. If that legislative decision is unwise, short-sighted or improvident, the remedy is with the Legislature and not with the courts.
The decision of the trial court is affirmed. No costs, a public question.
