February 2007

Lessons from the California practice rights litigation

Part 7 -- Early 'schools of chiropractic' ‑‑ An introduction

by David Prescott, MA, JD, DC

As has been indicated several times in this series of articles, a central point raised in the Tain case was that section 16 of the California Chiropractic Act has, at all times, required the act to be interpreted so as to not "discriminate against any particular school of chiropractic, or any other treatment". In addition, the California courts have long recognized that chiropractic is not a static profession and may (one case has indicated probably must) incorporate new knowledge within its original domain; that is, within the schools of chiropractic and other treatment as practiced prior to 1922.

The Tain court ignored the non‑discrimination provisions of section 16 and merely reiterated the definition of chiropractic announced in the Fowler (1938) and Crees (1952) cases. The attorneys involved in the Fowler and Crees cases did not attempt to introduce any evidence about the various "schools of chiropractic" or other treatment practiced by chiropractors prior to 1922. Therefore, the Fowler and Crees courts defined the scope of chiropractic practice based upon a dictionary definition (and out‑of‑state cases) that severely limited the scope of chiropractic practice. The Tain court ruled the BCE's present scope of practice rule (1991 Rule 302) is consistent with the holding in the Fowler/Crees cases and held, in effect, that so long as the BCE is satisfied with such a rule the courts would not hear evidence seeking to overturn the BCE's rule. We agreed that Rule 302 is consistent with the holdings in the Fowler and Crees cases but argued that those holdings (and Rule 302) are inconsistent with the original intent of the 1922 act, and with the non‑discrimination provisions quoted above.

Thanks historians

Edwin Grauke and I had to be prepared to present the evidence about the various "schools of chiropractic" and other treatment practiced by chiropractors prior to 1922. I spent many hours studying this history and was amazed at the depth and breadth of early chiropractic. We could not have even considered presenting this history to the courts without the work of the Association for the History of Chiropractic which was founded 1981. More particularly, the works of Drs. Walter Wardwell (general history of chiropractic), Joseph Keating and Reed Phillips (history of LACC), Ronald Beideman (history of NCC) and Brian Smith (pre‑1922 connections between naturopaths and chiropractors in California) were invaluable. Their works also lead me into a large body of original materials which will also be touched upon in future articles.

The works of the cited authors, and others, did not become available until after the adoption of the 1991 scope of practice rule (Rule 302) and the referenced chiropractic historical data was not considered in the process of adopting Rule 302 in 1991. The BCE should reconsider its own 1991 rule based upon a detailed review of the information from these authors and related matters. (I think it will be doing so by the time this article is in print.)  In addition, there has been a revolution in the philosophy and sociology of science, and relative to the importance of the history of science, since the decisions in Fowler and Crees that needs to be taken into account. I will touch upon Thomas Kuhn's 1962 book, "The Structure of Scientific Revolutions," and some subsequent developments in a future article.

Who counts

Lawyers are very familiar with arguments about whose opinions should be considered in addressing the original intent of the United States Constitution. We often refer to "the founding fathers", but who were they and whose opinions should be given more weight than others. The starting point is more clear with respect to the chiropractic community. Obviously, the perspective of DD Palmer and BJ Palmer must be considered. But, where do we go from there?

The pre‑1922 chiropractic history demonstrates at least four separate, but interrelated, streams of thought: 1) physiological therapeutics (including use of the natural [naturopathic] materia medica); 2) reflex therapeutics; 3) straight chiropractic; and 4) neuromusculoskeletal and physical therapy practice. The last two need no further introduction here, but they will be specifically addressed in subsequent articles. However, a brief introduction to the first two streams of thought is called for.

Physiological therapeutics

On page 24 of Beideman's history of NCC, there is a copy of the text of a letter written by DD Palmer dated December 17, 1906 to Dr. John A. Howard wherein DD specifically supported the idea of Howard starting a chiropractic college. Dr. Howard graduated from Palmer School of Chiropractic (PSC) in 1905 and founded the National School of Chiropractic in Davenport, Iowa in 1906. The name was subsequently changed to NCC and the school was moved to Chicago in 1908. Obviously, Dr. Howard's work must be given due consideration.

In the early years, and prior to 1922, the degree offered by NCC was in CHIROPRACTIC and PHYSIOLOGICAL THERAPEUTICS. This included such physical agents as cold, heat and electricity for general healing purposes and also as physical therapy modalities. NCC's early curriculum included the use of the entire natural (naturopathic) materia medica.

LACC was founded by Drs. Charles and Linnie Cale in 1911 and is often cited as a sister school to NCC because it had a similar therapeutic perspective  (Beideman, pp. 216‑217). As to LACC, I will focus on the work of several early California chiropractors and their relationship with Carl Schultz, MD who was instrumental in the founding of the Association of Naturopathic Physicians of California whose members (including Charles Cale) were licensed as "naturopaths" under a 1909 amendment to the California Medical Practice Act of 1907.

Reflex therapeutics

I will consider this "stream" of thought by starting with the work of J. Shelby Riley who, in 1912‑13, founded the New England College of Chiropractic. Dr. Riley also wrote "Science and Practice of Chiropractic and Allied Sciences," which was published in 1919. On pages 284‑285 of that text he refers to his earlier book on "Zone Therapy." Dr. Ron Watkins who was a co‑founder of Life Chiropractic College, the founding director of the clinic at Canadian Memorial and a previous director of the clinic at Cleveland Chiropractic College, Los Angeles personally told me that much of his reflex work was derived from zone therapy. I will also address the practice and teaching of zone therapy by Dr. George Starr White who was the honorary Dean of LACC from 1921 to 1924.

A second stream of reflex therapeutics was initiated by Terrence Bennett who was a California chiropractor prior to 1922. Dr. Bennett's work on reflex therapeutics was further developed and taught by Dr. Ralph Martin who was a co‑founder of the ACA Council on Diagnosis and Internal Disorders.

Obviously, as a lawyer, my primary focus is on the original intent of the 1922 act and the non‑discrimination provisions cited above; and external discrimination. However, I will hereafter also draw some comparisons between the referenced streams of chiropractic thought and the concept of the "Living Matrix" previously addressed in my series of articles published in The Chiropractic Journal in 2005.

(David Prescott is a former prosecutor, law school dean, professor of constitutional law, and a trial attorney with more than 30 years experience. He is also a 1989 Cum Laude graduate of Cleveland Chiropractic College. Contact him by calling The Prescott Group, 888‑989‑0855 or find more information at www.prescott‑law.com)