February 2006

See also: WCA files complaint against California board consultant and Complaint from WCA

California DC demonstrates perseverance under pressure

Endures lengthy board harassment

For more than a year and a half, California chiropractor Donald Harte, DC has fought a running battle with the state Board of Chiropractic Examiners.

The case began with a letter from the board in Sept. 2003 notifying Dr. Harte that it was "reviewing information we received regarding your advertising" and ended 17 months later with an equally curt letter noting that "this case will be closed..."

The intervening months produced a stack of correspondence that clearly documents his attempts to elicit information from the board, as well as the board's obvious pettiness and bias against subluxation‑based chiropractic practices. It spotlights a problem that many DCs have encountered: arrogant and arbitrary boards that attempt to intimidate doctors with threatening letters while refusing to provide information or assistance.

In this case, the board may have chosen the wrong victim since Harte ‑‑ a member of the World Chiropractic Alliance International Board of Governors and dedicated subluxation‑centered practitioner ‑‑ isn't easily intimidated.

The case started when Harte received a letter, dated Sept. 26, 2003, from the board stating that it was "reviewing information we received regarding your advertising." The letter demanded citations from peer‑reviewed medical/chiropractic journals that chiropractic prevents or cures various diseases. Like most such board letters, this one gave no information as to the nature of the complaint or who filed the complaint. It curtly noted that the information had to be provided by Oct. 17 and that he could not fax the documentation.

In response, Harte wrote a lengthy and courteous letter asking for additional information and pointing out, in detail, that his advertisements contain absolutely no claims about chiropractic's ability to prevent or cure any disease.

"The entire point of the ad is my 'confession' that, as a chiropractor, I do not treat, heal or cure anything, and that it is the body that does the healing," he explained. "This has been the historical basis in chiropractic. This is what I was taught at New York Chiropractic College, a CCE accredited school, and what was taught by the founders of chiropractic, Drs. D.D. and B.J. Palmer."

He also explained the other steps he takes to educate his patients as to the purpose of his care, including orientation classes and the use of a "terms of acceptance" form. "My patients are also given written quizzes, with which I make sure that they understand that they are not going to get treated, cured or healed by me or by chiropractic," he added. "The word 'treatment' isn't even allowed within my office."

Although he didn't receive a response, he decided to follow up his letter with a packet of information including a reprint of a research article in the Journal of Vertebral Subluxation Research and a copy of the World Chiropractic Alliance position paper on diagnosis.

"In a nutshell, chiropractic does not treat eyesight, or insomnia, or allergies, or any other disease, but people with all kinds of diseases often get well under chiropractic care," he emphasized in this letter, dated Oct. 28, 2003.

Weeks ‑‑ then months ‑‑ went by without an answer. Harte assumed the information provided had satisfied the board and he went about his normal routine of educating and helping patients. It was a shock when, in August 2004, he received an official "VIOLATION/CEASE AND DESIST LETTER" via certified mail from the board.

He was even more shocked when he noticed that the letter, although addressed to him, opened with the salutation, "Dear Doctor Ferguson." Since the letter referenced the same complaint number as the 2003 letter, he assumed it was for him and read that the board had determined that his advertising was in violation of three sections of the state code regulating chiropractic. Although the sections were listed, the board did not specify which parts of his ads were judged to be in violation, or what remedial steps he might take to bring them into compliance. The only clue was a notation that is ad violates a section of the law prohibiting an ad that "makes a scientific claim that cannot be substantiated by reliable, peer reviewed, published scientific studies."

The letter, signed by M. Maggie Craw, MA, DC, DACBR, identified as a "CBCE Consultant," ended with the notation: "To avoid future action it is your professional responsibility to assure compliance with all laws and chiropractic regulations." It failed, however, to even mention any of Harte's previous correspondence.

Again, Harte wrote a detailed response, asking for the board's assistance in understanding just where he supposedly went wrong in his ads. "I cannot alter what I am doing when I am completely unaware of what I am doing wrong, and what I should do to correct whatever it is," he asked.

He carefully reviewed his ads and still could not find any indication as to what parts could be deemed in violation of the law since it clearly made no claim ‑‑ scientific or otherwise ‑‑ about chiropractic's ability to prevent, treat or cure any disease or condition. "In fact," he explained, "I found no claims at all, other than the 'anti‑claim' that I do not heal or cure anything. As far as I can see, my advertising is merely telling the chiropractic story."

This time, Harte sent copies of his letter to Assemblyman Joe Nation, and Matthew McCoy, DC, chairman of the WCA Chiropractic Advocacy Council.

Still no answer from the board. In mid‑September, Harte tried once again to get information from them, writing another letter in which he stated, "It is only with answers that we can work together to solve this problem. After all, what is at stake here is more far reaching than my own situation. This situation brings up issues of what chiropractic is, freedom of speech and freedom of lawful commerce, and more importantly, the right of Californians to receive chiropractic care, which is an issue of public health. Everyone benefits when there is clarity."

After once again explaining the rationale behind his ads, he asked several questions of the board, including whether it was the board's position that chiropractic "is to be restricted to the allopathic practice of treating musculoskeletal conditions," and whether, according to the board, chiropractors were to be "prohibited from explaining the differences between the medical and chiropractic paradigms."

He also asked whether the "ubiquitous '9 danger signals' in Yellow Page ads throughout the state (had) been checked for related research references." Again, he sent copies of his letter to his assemblyman and Dr. McCoy.

Eleven days later, when he still had received no reply from the board, Harte tried once again time. In a letter dated Sept. 21, he told the board that he would voluntarily change the wording of his ad, adding a sentence explaining, "As a chiropractor, I don't heal or cure anything (including any symptoms, conditions or diseases mentioned in this article)."

While most DCs, at this point, would have reached the end of their patience, Harte remained cordial and cooperative, stating in his letter: "Please advise me if the stated change in my advertising will settle this complaint. If not, I would be happy to meet with you or any other member of the board to resolve this."

When the board finally replied, it was clear that it did so only because of the assemblyman's intervention. "Per the request of Assemblyperson Joe Nation's staff, he will be copied on my response," wrote Dr. Craw, the board's consultant.

In the letter, Craw said Harte failed to "substantiate the implicit claims found within your promotional material." She specifically dismissed the WCA's position paper, categorizing it as "a position paper web‑published by the World Chiropractic Alliance (a group not recognized by any chiropractic college, licensing board accrediting body, state chiropractic organization or (sic) national chiropractic organization) citing six (6) irrelevant legal verdicts."

Craw also reiterated the sections of the chiropractic code which Harte's advertising allegedly violated, without indicating which statements in his ad were in violation. She studiously avoided answering his other questions, making only general statements such as "It is the board's position that licensee's are required to abide by all California laws and regulations," and that "This board has no jurisdiction over chiropractic patients," and "This board has no jurisdiction over Yellow Page advertisements, other than those of licensed DCs." None of her responses adequately answered Harte's concerns over the apparent discrimination against subluxation‑based chiropractic advertisements.

She demonstrated that board's continued arrogance by ending her letter with a reminder that "the remand to cease and desist from disseminating the material in question as well as all other forms of misleading advertising and false claims, stands... To avoid future action, it is your professional responsibility to comply with all laws and chiropractic regulations."

At this point, Harte's level of frustration and anger was rising, but he tried once again to communicate with the board. In a five‑page letter to Craw, he reiterated the point he had been making from the start, that his advertising contained absolutely no claims regarding chiropractic's ability to prevent, treat or cure any disease or condition.

"As you must now that I am not in violation of any regulations, that I am not making or disseminating any false or misleading statements or claims, and that I do not have any intent to do so, I can only suspect that this whole affair is an effort of the board to silence, contain and/or eliminate that portion of the profession ... that is subluxation‑based." He noted, too, that he was aware that the board had sent similar letters to several of his subluxation‑centered colleagues.

Harte took time as well to reiterate the questions that were not addressed in Craw's response to him and to expose Craw's ignorance of ‑‑ or malice toward ‑‑ the World Chiropractic Alliance. He reminded Craw that the World Chiropractic Alliance is a Non‑Governmental Organization (NGO) recognized by the United Nation's Department of Public Information, was a founding member with the International Chiropractors Association and Federation of Straight Chiropractors and Organizations of the Chiropractic Coalition, and held an annual Summit in Washington, DC (at which at least three chiropractic college presidents were in attendance).

"The board's statement against the WCA merely underlines its undignified intra‑professional bigotry towards VSC‑based Chiropractic," he stated.

In closing he emphasized, "It is my understanding that the mission of the board is to enforce the law, in an effort to protect the public health. I have committed no violation, and I am certainly not any sort of threat to the public health."

Two months went by without a word from the board, so Harte wrote again, noting, "As it has been a considerable length of time without any request from the board for additional information, clarification or action on my part, I must assume that the board is satisfied. Originally, this matter had been opened on, shall we say, very shaky ground, without even a direct and specific accusation (exactly what words, what part of my advertising was being called into question, and why). I have gone to great lengths to explain why the truth of the matter is exactly opposite what the accusation states (false and misleading advertising, making false scientific claims). I have gone further, making it even more clear in my advertising that I am not holding out any claim, cure or promise to cure, including whatever symptoms or conditions that are mentioned therein.... For the board's benefit, I have made the truth (that I am not in any sort of violation of false and misleading advertising) even more clear by additional verbiage in my advertising. I am being honest, open and reasonable. Again, everything that I do is in accord with chiropractic philosophy, history and tradition, and in accordance with the CCP guidelines. I would appreciate getting written confirmation that you are satisfied in this matter."

A week later, the board wrote to Harte again. This time, they didn't mention the ads, but instead asked to see a copy of "your revised newsletter for our review"

The explanation of their concern with his newsletter was a striking and shocking demonstration of the board's pettiness and harassment. "We would like to bring to your attention that any time you use the prefix 'Dr.' you must have 'D.C.' or 'Chiropractor' immediately following your name," the letter, this time signed by Beckie Rust, the board's Consumer Assistance Technician.

Showing unbelievable restraint, Harte replied to this latest complaint with a copy of his advertising insert ‑‑ what the board apparently categorized as a newsletter ‑‑ showing that he now listed himself as Dr. Harte, (D.C.)

"It is obvious that the intent and spirit of (the law) is that chiropractors should not attempt to pass themselves off as medical doctors," he told the board. "As you must be aware, I would never, in any way, attempt to be mistaken for a medical doctor. 'Chiropractic' is hardly kept a secret in the ad, and no one would think that I am a medical doctor by the time they got to my name in the ad."

As a postscript, Harte notes that, "Upon checking the (Chiropractic) Initiative Act, I happened to glance at Section 16. I noted '...nor shall this act be construed as to discriminate against any particular school of chiropractic...' The law allows, specifically, for philosophical differences within the profession... Therefore, it would appear the board actions against chiropractors, primarily based upon the board's disagreement with the 'particular school of chiropractic' of those chiropractors, would be unlawful under the Chiropractic Initiative Act, as well as discriminatory in general, and limiting of the health care choices of Californians."

More than three months passed before the board deigned to contact Harte again. This time, as though realizing they had bitten off more than they could chew, they merely noted, "Board staff has reviewed all available documentation, and this review has determined that this case will be closed." But they weren't about to let Harte off the hook completely. Instead, they noted that the case was "closed with merit and shall remain on file for a period of five years. If the board receives additional information of this nature, we may elect to reopen this case."

Although the sword of Damocles will remain poised over his head for the next five years, Harte feels vindicated. "It's important that other doctors know the board can be beaten, especially when you stand, unequivocally, by the Principle."

Terry A. Rondberg, DC, president of the World Chiropractic Alliance, called Harte's 17‑month ordeal an "heroic example of how one doctor refused to allow his board to intimidate him or force him to compromise his principles. It's absolutely unconscionable for the California board ‑‑ or any board ‑‑ to treat chiropractors with the type of disdain demonstrated here. If board members cannot be responsive to the doctors in their state, they have no right holding the position."

Dr. Rondberg encouraged all doctors to follow Harte's example and persevere with professionalism, patience and courtesy. "It helps to 'cc' your state legislators on correspondence as well, and don't hesitate to alert other state officials, including the governor, to any instances of abuse or discrimination. Dr. Harte has shown us that field doctors do have power; they just have to be brave enough to exercise it."

Asked if he thought Harte would face retaliation for exposing the story in the chiropractic press, Rondberg stated that such an action on the board's part would be so clearly seen as vindictive that the state Attorney Generals' office would have to be brought in to investigate. "Let's hope that, for everyone's sake, the board uses some common sense and stops harassing subluxation‑based chiropractors in California," he stated. "If they don't, we may see some very strong legal actions taken against the board."