OAG01-01

[=OAG 1,01 4-5]   The courts and this office have also recognized that the disciplines of various health care professionals may overlap. In Kerkman, 142 Wis. 2d at 416, the court recognized that “[a]lthough chiropractors are permitted to use some medical tools when analyzing and treating a patient, this overlap does not transform the practice of chiropractic into the practice of medicine.” In 68 Op. Att’y Gen. 316 (1979), my predecessor concluded that a physician could advise a patient whether continued chiropractic care was necessary without engaging in the unauthorized practice of chiropractic, even though that advice may technically fall within the definition of chiropractic practice. That opinion considered the general law on litigated disputes between engineers and architects over the scope of their respective practices, quoting 5 Am. Jur. 2d Architects § 3 (68 Op. Att’y Gen. at 319-30):

[W]here either a licensed architect or a licensed engineer performed services which could properly be regarded as within the reach of the statute licensing his profession and also within the statute licensing the other profession, he performed such services under the statute under which he was licensed and was not affected by the fact that they came incidentally within the purview of the other licensing statute.

The opinion further stated (68 Op. Att’y Gen. at 320):

  It is my opinion that a similar line of reasoning must be applied to chiropractors and physicians. In giving advice to patients, there is an overlap between what may properly be done by a chiropractor and a physician under their respective grants of statutory authority. In my view, a physician is given the latitude to perform services within his or her authority, whether those services overlap with professional services properly performed by a chiropractor, or other health care professional.

  To find otherwise would be to place unreasonable restraints on the practice of medicine. As summarized by the court in Smith v. American Packing & Provision Co., 102 Utah 351, 130 P.2d 951, 955 (1942), "the mere fact that a licensed profession extends in some degree into the field of some other licensed occupation, does not require the licensee to have a license in each of the fields into which his profession may overlap, unless the statutes impose such requirement." Our statutes impose no such requirement. It is therefore my opinion that physicians may advise their patients whether or not continued chiropractic care is necessary. By so doing, physicians are not engaging in the unauthorized practice of chiropractic.

  In the absence of a more specific explication of the operative phrases of the practice statutes involved – particularly, sections 446.01(2), 448.50(4) and 440.98(4)(a) – by the administrative rules each of the respective examining or credentialing boards or department is authorized to promulgate, my opinion is limited to the general proposition that physical therapists and massage therapists are not prohibited from performing the activities that are within their respective scopes of practice, even if those activities extend in some degree into the field of chiropractic practice.

[=OAG 1,01 6]   Consistent with sections 446.02(10)(a) and 448.525(1), I urge the Chiropractic Examining Board to begin the legislatively-mandated process of promulgating joint rules with the Physical Therapists Affiliated Credentialing Board. I encourage both boards to sharpen the definitions of their respective practice areas, in order to give both chiropractors and physical therapists adequate guidance about the permissible scope of their respective practices.

              Sincerely,

              James E. Doyle

              Attorney General

JED:BAO

CAPTION:

  Discussion of overlapping areas of practice of chiropractors, physical therapists and massage therapists. License in each discipline not required where overlap exists.

1

  Your letter includes a number of definitions of the terms “chiropractic adjustment,” “chiropractic manipulation,” “spinal manipulation” and “spinal adjustment.” Some come from the opinions of attorneys general in different states, or from administrative regulations in other states. One appears to be based on an uncodified distinction made by the Chiropractic Examining Board between “manipulation” and “mobilization,” based on the lever length, velocity and amplitude of the respective procedures. Another comes from a Wisconsin Court of Appeals’ decision in Kerkman v. Hintz, 138 Wis. 2d 131, 134 n.2, 406 N.W.2d 156 (Ct. App. 1987), aff’d in part and rev’d in part, 142 Wis. 2d 404, 418 N.W.2d 795 (1988) (both courts holding that a chiropractor should be held to a “reasonable chiropractor” standard, and not a “reasonable physician” standard in chiropractic negligence cases). The definitions from other states, and the attorney generals’ opinions interpreting the laws of other states are of only limited utility in interpreting the differently worded laws of Wisconsin. The Board’s uncodified distinction is unhelpful precisely because it is uncodified. The definition of chiropractic “adjustment” in the Kerkman case is completely nonessential to the holding in the case, because the issue involved only the standard of care to which chiropractors should be held, and not the substantive content of chiropractic, physical therapy or massage therapy practice.