In prior articles I've discussed some of the legal issues of chiropractic scope of practice. Here, I will trace how trial tactics and the pursuit of academic acceptability have shaped the present limited perspective of chiropractic.
Yesterday's successful trial/survival tactics may be a prescription for failure under changed circumstances. This is a general truth known to all trial lawyers and it is particularly true for chiropractors; especially today when the metaphysical foundations of science itself are being widely challenged, and the pathophysiologic model of allopathic medicine (morbific agent or disease starts in the individual cell or genome) is being reconsidered on a broad spectrum. It is also a great mistake to confuse a trial strategy with some kind of ultimate truth.
The evidence presented here will show there has been a tendency to overlook the concept stated in section 16 of the California Chiropractic Act: that there shall be no discrimination against any particular school of chiropractic, or any other treatment. This concept in our rapidly changing world becomes vital to practitioners who need maximum flexibility to work for their own survival and that of the group. More of this in subsequent articles.
This was a newspaper headline from the July 22, 1907 issue of the La Crosse, Wisconsin Tribune when chiropractor Morikubo was charged with practicing medicine and osteopathy without a license. The defense tactics utilized in that case still reverberate wherever chiropractors meet to discuss the question, "What is chiropractic."
The Morikubo case had great significance to all chiropractors, as in 1907 no state allowed licensure of chiropractors. Chiropractors, including B.J., rallied behind Dr. Morikubo. The practicing medicine charge was dismissed at the time of trial and the prosecution only proceeded on the practicing osteopathy charge.
B.J. went to Wisconsin the day after Dr. Morikubo's arrest and participated in planing the strategy for the trial. However, Tom Morris, the attorney chosen to represent Dr. Morikubo, defined the trial strategy and based it upon the chiropractic profession's first published textbook, Modernized Chiropractic (1906), authored by Drs. S.M. Langworthy, Oakley Smith and Minora Paxson.
It was argued in Modernized Chiropractic that it is the "philosophy, science and art of a healing system," not its "pathological hypotheses," which differentiates it from all other healing systems. (I strongly disagree and will articulate that disagreement in subsequent articles.) In any event, the philosophy/art proposition became the tactic used in the defense of Dr. Morikubo. Tom Morris was able to sell the jury on the idea that osteopathy was based on the primacy of the artery, and chiropractic on the "function of the nervous system through the unseen power in the brain." He also distinguished the two on the grounds of their different techniques: short as opposed to long lever. I have to take my hat off to him. Personally, however, I have a problem with what developed after the trial.
Following the Morikubo trial, Tom Morris became the lieutenant governor of Wisconsin. But in 1914, he ran for governor and lost; thereafter, he made a career out of representing chiropractors and propagating the importance of a unified chiropractic profession; with him and philosophy as its focal point. Of course, he had competition from B.J. on this front.
Just two months after the Morikubo trial B.J. claimed, for the first time, that although his father was the discoverer of chiropractic that he, B.J., was the one to have "developed it into a well-defined nontherapeutical philosophy, science and art that has no resemblance to any other science."
Tom Morris and B.J. competed for primacy of the Universal Chiropractic Association until the UCA convention of 1925 when Morris broke away from the group and set off a decline in that organization.
However, B.J's focus on philosophy started a competition between B.J. and Dr. John Nugent. B.J. on one occasion referred to Dr. Nugent as the "antichrist of chiropractic." Dr. Nugent won this one and his victory still dominates scope of practice issues.
Accreditation Discrimination
Dr. Nugent attended West Point, was admitted to Yale Law School (but did not attend), and graduated from Palmer Chiropractic School in 1922. He started his war with B.J. that same year and was expelled from school. He was returned to the school over B.J.'s protest by a vote of the faculty. After leaving school, Dr. Nugent practiced for five years and then made a career out of seeking to reform chiropractic, based primarily upon 1) the elimination of all for-profit chiropractic schools, and 2) the pursuit of what he conceived to be a scientifically sound (allopathically-oriented) curriculum. It is this second objective that concerns us here.
In 1939, at Nugent's urging, the National Chiropractic Association formed a committee on educational standards. This ultimately became what is now the CCE. Nugent headed this committee from its inception until the 1960s. He was successful in closing down the for-profit institutions which merged with different nonprofit schools, and in instigating a general improvement in the quality of chiropractic education. Clearly these efforts were laudatory. But there was one ironic and discriminatory outcome of his crusade which was not quite so praiseworthy. I will return to this point after a brief outline review of California chiropractic history.
Back to Dr. Nugent.
In 1954, at the instigation of Dr. Nugent, the NCA Committee issued an edict that no chiropractic school offering naturopathic courses would be approved by the committee. All schools then dropped such courses as herbs, glandulars, phytotherapy, etc., and stopped offering the additional degrees such as ND and/or DDT. This is especially ironic following so closely upon the heels of the 1948 increase in required education (with electives), and the Oosterveen case. Of course, it also resulted in the schools filling up their curricula with just more allopathic courses.
The next major event in the legal battle over chiropractic that I wish to address was before the New Zealand Commission of Inquiry on Chiropractic in 1979.
David Chapman-Smith, a Canadian attorney (who later would found the World Federation of Chiropractors), represented the New Zealand chiropractors. He basically had only one of two tactics available to him because of the changes that had occurred in chiropractic education following the edict from Dr. Nugent: attempt to rely on the 1907 approach of claiming chiropractic is a nontherapeutical philosophy, science and art that has no resemblance to any other science, or claim chiropractors are musculoskeletal specialists.
He choose the second path. I would have done the same in his place at that time, but not now, and especially not in California. (See conclusions.) He was successful in his efforts; it should also be noted that this same approach was also the foundation for the theory of chiropractic followed in the Wilk case.
It is essential to note that the approach taken in the New Zealand matter was, in effect, the antithesis of that taken by Tom Morris in Morikubo. How can such a thing occur in the law and each argument succeed? Simply stated, the law is an ongoing conversation which we have with ourselves about how we wish to be governed. Judges (commissioners) are part of that conversation and take the signs of the times with them to their role. That is, the potential for the success of a particular argument or tactic depends in part upon the general conversation going on in society.
In Richard Tarnas' book The Passion of the Western Mind, he details the discussion we have been having for at least 2,500 years in the Western world about metaphysics: What is real and how do we know? That conversation has been bogged down in materialistic, reductionistic presuppositions for at least 200 years but has recently come back to life.
Metaphysics and the questions of the origin of life, the concept of death and the possibility of the existence of a life force are back in the public debate. This means the courts will be more receptive to a broader concept of the healing arts and those of us who disagree with the materialistic presupposition should assert our right to a different philosophical position than that of mainstream medicine. Of course, the right of other chiropractors to defend the materialist position must also be respected and preserved. More, however, is needed. Philosophy only dictates the scope of the permissible questions, it does not provide the answers. The answers must be based upon evidence.
Evidence is available. At least as to the importance of "host resistance" and the integrity of the energy/information delivery systems of the body (whatever the evidence shows them to be), and also the efficacy of natural therapeutic agents (including homeopathic preparations thereof). These concepts have been refined over the past 30 plus years by European practitioners of functional medicine. In subsequent articles I will demonstrate the similarity between functional medicine and the founding concepts of chiropractic: primarily those of D.D. himself, but also those of Sheldon Riley, J.F. Alan Howard, the founder of National College of Chiropractic, and Linnie Cale of LACC, whose ideas included the concept of the meridian system and the use of natural therapeutic agents for maintaining and restoring the integrity and function of the body's resistance capacity.
I intend to argue in subsequent articles, in the courts (as to scope of practice, but not in P.I. cases), and in other public forums that musculoskeletal specialty care is a minimum threshold that all chiropractors meet, but that chiropractic (functional/natural medicine) is a much broader and comprehensive healing art. Further, that these two conceptual frames of reference are not mutually exclusive. Bear in mind that the California Chiropractic Act, for example, grants each of us the civil right to argue against all those who attempt to monopolize the marketplace of ideas and the healing arts.
References upon request:
David Prescott, DC, MA, JD, FIACA
Tustin, California
(714)649-0661
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