Letter to the Editor

I would like to thank the editor for providing such a thorough history and comparison of physical therapy (PT) and chiropractic in his recent editorial “Chiropractic Legal Challenges to the Physical Therapy Scope of Practice: Anybody Else Taking the Ethical High Ground?” In this editorial, he clearly differentiated the public policy issues from the economic issues behind the chiropractors’ seemingly organized attempts to restrain the PT scope of practice. Like the editor, I am tired of battling the chiropractors in the legislatures of our country when we should be competing on price, quality, value, and outcomes. Or rather, we should be joining forces to promote the benefits of manipulation in response to recent negative articles such as in the April issue of Self Magazine about the dangers of chiropractic manipulation.

As the editor so competently pointed out, physical therapists have led the efforts to validate the benefits of manipulation in evidence-based medicine and there is absolutely no evidence of potential public harm from manipulation by a physical therapist. Therefore, the fear of losing market share can be the only driving force behind the chiropractors’ advocacy agenda. Such unfair and deceptive acts affecting commerce would be characterized as a restraint of trade if it were not in the context of lobbying the government.

The Federal Trade Commission Act¹ was passed in 1914 for the purpose of regulating unfair competition. Section 5 of the Act states, “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” Unfair methods of competition include violations of the Sherman Act², which involve conspiracies to monopolize or attempt to monopolize trade or commerce. It seems that both of these laws would prevent chiropractors from attempting to gain a monopoly on manipulation services, but unfortunately they have not.

The First Amendment³ guarantees freedom of speech, of assembly, and “to petition the government for a redress of grievances.” In an effort to balance constitutional rights against antitrust liability, the Supreme Court, through a line of cases that have become known as the Noerr-Pennington doctrine, has limited the enforcement of antitrust laws for private acts that involve attempts to influence legislation⁴. Although petitioning is lawful, the Court has acknowledged that there may be situations where the petitioning, although “ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.”⁵

The recent editorial references voluminous evidence that contradicts what legislators are being told by chiropractors that petition the government to restrict the PT scope of practice. Therefore, are the chiropractors advocacy efforts a “mere sham”? Unfortunately, the courts have yet to define conduct that constitutes a “mere sham” with regard to petitioning the government. So for now, it is up to responsible legislators to see the facts through all the dogma.

I have faith in the wisdom of our elected officials, but less faith in the physical therapists’ ability to identify the relevant arguments. The chiropractors are very skilled at articulating “sham” arguments against the therapists, resulting in the latter having to defend themselves against positions that are irrelevant to public protection concerns. A few of these positions are discussed in the recent editorial. For instance, the argument that “chiropractic predates the PT profession” is irrelevant to the question of whether the public needs government protection against manipulation by physical therapists. Manipulation techniques are not protected under any trade secret, patent, or copyright laws. Physical therapists don’t need to spend any more energy rebutting this mute point. Even if therapists learned manipulation yesterday, it is not relevant to the issue of public protection where there is no evidence that the public has been harmed.

The argument that the PT education is not the same as chiropractic education is an equally irrelevant argument. Medical doctors do not take as many pharmacology classes as pharmacists. Should we restrict physicians from prescribing drugs? The only relevant scope of practice question is what education is necessary to ensure adequate competence for public protection, not whether our education is identical. The editor did an excellent job of comparing chiropractic and PT education in the recent editorial, proving that PT education is certainly equitable and adequate in absence of evidence of public harm.

Physical therapists need to shift the debate to the real evidence of public harm instead of spending so much energy on defending our education. The credible references in this editorial provide proof that physical therapists do not harm the public. If our education were not adequate, there would be more evidence of public harm in those states where therapists use manipulation. In fact, if the legislatures are truly concerned about public harm from manipulation, they should take a close look at the evidence of harm done at the hands of chiropractors.

The editor discussed the problem of creating scope of practice restraints around political constructs, such as distinguishing mobilization from manipulation by defining physiological barriers and the “paraphysiological space” and that the paraphysiological space has never been measured. Legislators should be aware of the problems that are created when the line between lawful and unlawful conduct is defined by something immeasurable. When unlawful conduct can only be described in philosophical terms versus identified by reliable objective evidence, it can have a chilling effect on the rights of licensees to lawfully practice their profession.

Despite how mobilization and manipulation are statutorily defined, chiropractors tend to rely on an audible “pop” as the only evidence that a legal line was crossed even if a “pop” is not part of the statutory definition. Scientific evidence does not support an audible “pop” as being the distinction between these techniques. I can think of no political construct that could produce reliable evidence to distinguish between a mobilization and a manipulation when it is only the patient and the provider in the room. Therefore, legislators should not pass legislation that could result in fines, criminal charges, or disciplinary action against one's license unless the unlawful conduct can be distinguished from lawful conduct with reliable and valid evidence.

The Federal Trade Commission has opined that the consumer “deserves a right to evaluate all elements of the bargain” in choosing which provider of services to use in the “absence of compelling evidence” of potential harm to consumers. In Improving Health Care: A Dose of Competition,⁶ the FTC makes it clear that competition is in the public's best interest to control overall health care costs and that unnecessary licensure restraints serve no purpose. The benefit of the statutory restraints does not provide additional public protection where the PT Licensure Board already regulates standards of care and competency.

There is always a risk with manipulation or any other medical treatment, including one as common as taking aspirin. This is why clinicians obtain informed consent before any medical procedure. The consumer should be the one, who chooses their treatment and their provider after being informed of all their options. Harm done by medical professionals who do not meet the standard of care is remedied by a malpractice action, not by a disciplinary action by a licensure board. Thus the need proposed by chiropractors to protect the public from physical therapists who manipulate is an illusory political argument. Responsible legislators who weigh the actual harm to the public from a PT manipulation against the harm to the public that is created by cutting off access to care and restraining competition will come down on the side of the physical therapists and the public.

In summary, I would like to echo the editor's call to chiropractors to seek higher ethical ground and not be afraid of PT competition. If chiropractors cannot maintain their market share through their own skill and reputation, they most certainly do not deserve to have a monopoly on manipulation legislated to them!