dr-amber-brooks-dc-v-texas-medical-board-and-in-their-official ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00239-CV
Dr. Amber Brooks, D.C., Appellant
v.
Texas Medical Board and, in their official capacities only, Mari Robinson,
Executive Director; Irvin Zeitler, Jr., D.O., Chair of the Disciplinary Panel; and
Paulette Southard, Member of the Disciplinary Panel, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-13-003617, HONORABLE TIM SULAK, JUDGE PRESIDING
MEMORANDUM OPINION
The Texas Medical Board issued a cease-and-desist order to chiropractor
Amber Brooks after determining that she engaged in the unlicensed practice of medicine by making
offers on her website for treatments that exceeded the scope of the practice of chiropractic. See
Tex. Occ. Code § 165.052(a). Seeking review of the order in district court, Brooks sued the Medical
Board, its Executive Director Mari Robinson, the Disciplinary Panel Chair Irvin Zeitler, Jr., D.O.,
and Disciplinary Panel Member Paulette Southard (collectively “the Board”). The district court
affirmed the Board’s order. Brooks appeals, asserting that the Board’s order was not supported by
substantial evidence and was made through unlawful procedure. We will affirm the district court’s
judgment.
BACKGROUND
Brooks maintained a website identifying her as “Dr. Amber Brooks,” a “biomedical
doctor,” “board certified pediatric chiropractor,” “craniosacral therapist,” and “one of only a
few pediatric biomedical doctors in the area.” The site stated that Brooks engages in “mentoring and
consulting other physicians and practitioners,” “assists her patients in achieving optimum health
by utilizing biomedical and functional medicine,” is concerned about “dysfunction in the body”
rather than “the label of the disease,” and focuses on “diagnosing the cause of the problem rather
than treating just the symptoms.” Her listed “Services” included autism [sic], craniosacral therapy,
chiropractic, pediatric nutrition, and biomedical intervention. Additionally, her site asked:
Is your child experiencing . . .
constipation • colic • acid reflux • bed wetting • poor sleep • asthma
• ear infections • PDD • Autism • ADD/ADHD •or other physical, mental,
or emotional ailments? 1
The site then credits Brooks with “successfully bridg[ing] alternative and traditional medicine” using
“biomedical” and “functional medicine.” Specifically, “[h]er success is achieved using homeopathic
detoxification, necessary nutritional supplements, dietary changes and counseling, craniosacral
therapy, chiropractic adjustments, laboratory testing/evaluation to discover the origination of
complications in children, treatment of bacterial/fungus overgrowth, and chelation.”
After receiving a complaint about Brooks, the Board conducted an investigation
and convened a disciplinary panel of Board representatives to conduct a cease-and-desist hearing.
See 22 Tex. Admin. Code § 187.83 (2013) (Tex. Med. Bd., Proceedings for Cease and Desist
1
Emphases in original.
2
Orders). Brooks testified at the hearing, and pages from her website were admitted into evidence.
At the conclusion of the hearing, the Board ruled in favor of issuing a cease-and-desist order.2
Brooks challenged that order by filing suit in a Travis County district court. The district court
affirmed the Board’s decision, and this appeal followed.
DISCUSSION
The Texas Occupations Code contains distinct definitions of the practice of medicine
and the practice of chiropractic. Tex. Occ. Code §§ 151.002, 201.002(b). “Practicing medicine” is
defined in the Medical Practice Act as “the diagnosis, treatment, or offer to treat a mental or physical
disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect
cures of those conditions, by a person who: (A) publicly professes to be a physician or surgeon or
(B) directly or indirectly charges money or other compensation for those services.” Id. § 151.002.
By contrast, the practice of chiropractic is the use of “objective or subjective means to analyze,
examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of
the human body” by “perform[ing] nonsurgical, nonincisive procedures, including adjustment and
manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal
system.” Id. § 201.002(b). Thus, while the practice of medicine is not restricted to any particular
part of the human body, the practice of chiropractic is limited to the spine and musculoskeletal
system. And while the practice of medicine is not restricted to any particular system or method of
treatment, the practice of chiropractic is limited to nonincisive procedures and nonprescription
treatment. Id. § 201.002(b), (c).
2
Brooks has made changes to her website in response to the Board’s complaint, but the
cease-and-desist order is based on her website as it existed in May 2013.
3
When engaged strictly in the practice of chiropractic as defined by law, a licensed
chiropractor is not engaging in the unlicensed practice of medicine. Id. § 151.052(3). But to the
extent that a chiropractor exceeds the statutory scope of chiropractic, she would subject herself to
the Medical Practice Act—and practice medicine unlawfully. Texas Bd. of Chiropractic Exam’rs
v. Texas Med. Ass’n, 375 S.W.3d 464, 467 (Tex. App.—Austin 2012, pet. denied); see Ex parte
Morales-Ryan, No. 04-07-00860-CR, 2008 Tex. App. LEXIS 4187, at *10 (Tex. App.—San Antonio
June 11, 2008) (mem. op., not designated for publication) (dentist was not engaged strictly in
practice of dentistry or within his oral and maxillofacial surgery specialty because he performed
procedures that were not restricted to oral and maxillofacial regions); Kelley v. Texas State Bd. of
Med. Exam’rs, 467 S.W.2d 539, 544-45 (Tex. Civ. App.—Fort Worth 1971, writ ref’d n.r.e.)
(dentist violated Medical Practice Act by authoring and distributing publication offering to treat
cancer throughout human body); Hawkins v. State, 125 S.W.2d 580, 582 (Tex. Crim. App. 1939)
(chiropractor violated Medical Practice Act by unlawfully offering and purporting to treat
tuberculosis).
In this appeal, Brooks argues that the district court erred: (1) in affirming the Board’s
cease-and-desist order because the Board’s order is not supported by substantial evidence and (2) in
concluding that the Board’s order “was not made through unlawful procedure, was not in excess of
statutory authority, and does not violate any statutory or constitutional provision.” We address each
issue in turn.
Evidence supported the Board’s decision
In her first issue, Brooks contends that there was no evidence presented to the
Board showing that she offered to exceed the scope of the practice of chiropractic. Within this issue,
4
Brooks challenges three of the Board’s findings in its cease-and-desist order: (1) that she engaged
in the unlicensed practice of medicine by making offers on her website for treatments that exceed
the scope of the practice of chiropractic; (2) that her website fails to provide sufficient information
regarding the limitations of her practice to the evaluation of the biomechanical condition of the spine
and musculoskeletalsystem and the manner in which she uses treatment procedures to improve the
vertebral subluxation complex or the biomechanics of the musculoskeletal system; and (3) that she
failed to provide disclosures required by the Healing Arts Identification Act when she identified
herself as “Dr. Amber Brooks” and “biomedical doctor” on her website.
The parties agree that our review of the Board’s order is governed by
section 2001.174 of the Texas Government Code, which requires that we reverse or remand a case
for further proceedings “if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions” are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and
probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Tex. Gov’t Code § 2001.174(2). In reviewing fact-based determinations under this standard, we
simply ask whether, considering “the reliable and probative evidence in the record as a whole,” some
5
reasonable basis exists in the record for the agency’s action. See id. § 2001.174(2)(E); Texas Indus.
Energy Consumers v. CenterPoint Energy Houston Elec., LLC, 324 S.W.3d 95, 105 (Tex. 2010)
(citing Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999)). We must affirm the
agency’s findings if they are supported by more than a scintilla of evidence. Mireles, 9 S.W.3d
at 131. We apply this analysis without deference to the district court’s judgment. See Texas Dep’t
of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006). We presume that the agency’s findings,
inferences, conclusions, and decisions are supported by substantial evidence, and the burden is on
the contestant to demonstrate otherwise. See Slay v. Texas Comm’n on Envtl. Quality, 351 S.W.3d
532, 549 (Tex. App.—Austin 2011, pet. denied).
To resolve this first issue, we group the Board’s related findings and address
them together.
Finding No.3—offer to treat exceeded scope of chiropractic
Finding No.5—insufficient information on limits of practice and treatment
Brooks contends that the Board lacked substantial evidence for its Finding No. 3 that
she engaged in the unlicensed practice of medicine by making offers on her website for treatments
that exceed the scope of the practice of chiropractic. In a related challenge, she contends that the
Board lacked substantial evidence for its Finding No. 5 that her website failed to provide sufficient
information regarding the limitations of her practice to the evaluation of the biomechanical condition
of the spine and musculoskeletalsystem and the manner in which she uses treatment procedures to
improve the vertebral subluxation complex or the biomechanics of the musculoskeletal system. We
conclude that there is more than a scintilla of evidence supporting these findings based on
Brooks’s testimony at the cease-and-desist hearing as well as her website, which contains pages
6
referencing medical services for children offered in addition to, rather than limited by, the practice
of chiropractic.
During the hearing Brooks testified that “a lot of people don’t understand why you
would want to ever take your kid to a chiropractor, and so I like to go through and explain that on
the website.” The first sentence on one version of Brooks’s site promoted her as “offering the best of
alternative and traditional medicine for optimum pediatric wellness.” Further down, the page stated,
“Dr. Brooks assists her patients in achieving optimal health by using biomedical and functional
medicine to help support their growing bodies” and that “[s]he has seen remarkable results on
a variety of disorders.” In a later version of the site, Brooks deleted the reference to a “variety of
disorders” and added a specific inquiry about children’s constipation, colic, acid reflux, bed wetting,
poor sleep, asthma, ear infections, PDD, Autism, ADD/ADHD, “or other physical, mental,
or emotional ailments.” This inquiry is emphasized using larger-sized type, some boldface, and
underlining “constipation,” “acid reflux,” “Autism,” and “ADD/ADHD.” Beneath that, the site
again referred to her use of “biomedical” and “functional medicine” bridging “alternative and
traditional medicine” for pediatric wellness.
According to Brooks, the purpose of referencing those ailments was to educate
parents “about ways that we may be able to help.” Consistent with that purpose, the message of
Brooks’s site is that she “offer[s] the best of alternative and traditional medicine” or “biomedical and
functional medicine” to help children with any of the listed ailments (or a variety of disorders).
Brooks denied that her website was telling the public that she would help with conditions like
acid reflux and A.D.D. using chiropractic care, but she explained that she could “co-treat” symptoms
7
such as constipation under a pediatrician’s orders. She was unsure if the web pages identified what
she can diagnose.
In addition to highlighting a list of many children’s ailments that Brooks testified she
does not treat or diagnose, Brooks’s website advertised services including “Biomedical Intervention”
and “laboratory testing/evaluation to discover the origination of complications in children, treatment
of bacterial/fungus overgrowth, and chelation.” The biomedical intervention Brooks offers on her
site is not referenced in any Texas statute or rule as treatment within the scope of chiropractic.
Brooks’s testimony that “biomedical” is “about nutrition and dietary stuff” veers from the accepted
definition of the word, which means “biological and medical” and “pertaining to the application of
the natural sciences (biology, biochemistry, biophysics, etc.) to the study of medicine.” Dorland’s
Illustrated Medical Dictionary, 221 (31st ed. 2007). Regarding the site’s reference to her treatment
of bacterial or fungal overgrowth, Brooks testified that she added “natural treatments as to
not misconstrue that.” Brooks also testified that she changed the “chelation” reference on her
site to “detoxification” because doctors perform chelation using intravenous medication, which
she does not. See Tex. Occ. Code § 201.002(c) (excluding incisive procedures and prescription
of drugs and controlled substances from practice of chiropractic). Apparently aware of public
confusion about her practice, Brooks testified that people have sought care from her beyond
the scope of her chiropractic license, and that she refers calls from parents of potential patients
to a medical doctor “all of the time.” But Brooks now dismisses the Board’s ruling as grounded in
“speculation” that the lay public would be confused about the scope of her practice if she omitted
words defining chiropractic treatment, such as “spinal” or “musculoskeletal,” from her website.
8
We find some parallels between this case and a decision from our sister court that
affirmed an injunction against a licensed dentist who exceeded the limitation of his practice by
authoring and distributing a publication offering to treat cancer throughout the human body. See
Kelley, 467 S.W.2d at 541, 544. In Kelley, the court noted that Texas statutes restrict the practice
of dentistry to certain areas of the body including the teeth, oral cavity, and gums, while treatment
of general conditions and functions of the body are reserved to medical doctors. Id. at 544. After
reviewing the dentist’s publication and applying the statutory definitions for the practice of
dentistry and the practice of medicine, the court determined that the publication: (1) implied he was
a physician by identifying him as a “doctor” without clarifying that he was actually a dentist; (2) was
an offer to treat cancer throughout the body; and (3) was the practice of medicine. Id. at 543-45.3
The court specifically determined, from reviewing the publication itself and the statements therein,
that the publication constituted a public profession of the practice of medicine and an advertisement
soliciting medical patients. Id. at 544-45.4
3
Brooks contends that an “offer to treat” under the Medical Practice Act requires the same
proof of elements set forth in a case involving an “offer” to enroll in a rebate program. Cf. McAtee
v. City of Austin, No. 03-10-00496, 2013 Tex. App. LEXIS 12518, at *10 (Tex. App.—Austin
Oct. 10, 2013, no pet.) (mem. op.) (appellants alleged city-owned utility was contractually liable for
failing to approve their applications for energy-rebate program). We reject that contention. Brooks’s
website is more like other advertisements with “offers to treat” various ailments. See, e.g., Hawkins
v. State, 125 S.W.2d 580, 582 (Tex. Crim. App. 1939) (chiropractor who unlawfully offered to
treat and used medication purporting to treat tuberculosis had yard sign promoting himself as
“Dr. C.L. Hawkins . . . Chiropractor, Naturopathic, Toxine Elimination, Exercise and Health Diet
and Health Service”); Mueller v. State, 153 S.W.1142, 1143 (Tex. Crim. App. 1913) (appellant who
unlawfully practiced medicine placed newspaper ads offering to treat diseases and disorders and
invited all afflicted to see him); Kelley v. Texas State Bd. of Med. Exam’rs, 467 S.W.2d 539, 544-45
(Tex. Civ. App.—Fort Worth 1971, writ ref’d n.r.e.).
4
Relying on Rogers v. Texas Board of Architectural Examiners, 390 S.W.3d 377
(Tex. App.—Austin 2011, no pet.), Brooks contends that expert testimony on the scope of
chiropractic and whether she exceeded that scope was required. In Rogers, we concluded the record
9
Similarly here, we conclude that the chiropractic limitation on Brooks’s practice
is not apparent from the web publication advertising her practice and treatments. The later version
of her site listed a variety of children’s ailments that are not presented as pertaining to the
biomechanical condition of the spine or musculoskeletal system. Among the advertised treatments
on her site is chelation, which when performed using intravenous medication is a treatment that
exceeds the scope of the practice of chiropractic. Nothing on her site shows that these services
or treatments for children are limited to chiropractic methods—i.e., the analysis, examination, or
evaluation of the biomechanical condition of the spine and musculoskeletal system using nonincisive
procedures such as adjustment and manipulation. See Tex. Occ. Code § 201.002(b) (defining
practice of chiropractic). We conclude that the evidence in this record as a whole provides a
reasonable basis for the Board’s Finding No. 3—that Brooks engaged in the unlicensed practice of
medicine by making offers on her website for treatments that exceed the scope of the practice of
was insufficiently developed to establish as a matter of law whether engineers were exempt from
the unauthorized practice of architecture. Id. at 391. Here, the record is sufficiently developed to
determine whether Brooks’s website offered to treat strictly within the statutory scope of chiropractic
practice, i.e., in a manner limited to the analysis, examination, or evaluation of the biomechanical
condition of the spine and musculoskeletal system by nonincisive procedures such as adjustment
and manipulation. See Tex. Occ. Code §§ 151.052(3), 201.002(b). The content of Brooks’s website
affirmatively goes beyond the scope of her license as a chiropractor, and no further testimony was
required to establish that fact. In addition, no controverting evidence about the website’s content
was before the Board.
Brooks also relies on Dotson v. Texas State Board of Medical Examiners, 612 S.W.2d 921
(Tex. 1981), to argue that expert testimony about the practice of medicine was required. In Dotson,
the Court noted the need for expert testimony as to what dosage of certain prescription drugs would
have been “non-therapeutic” and constituted a breach of the standard of care supporting the
suspension of a license to practice medicine. Id. at 923. No issue of medical standard of care
is present here. The evidentiary basis for the Board’s cease-and-desist order was Brooks’s website
and other online materials, not that treatments she actually provided were beyond the scope
of chiropractic.
10
chiropractic—and for the Board’s Finding No. 5—that Brooks’s website failed to provide sufficient
information regarding the limitations of her practice to the evaluation of the biomechanical condition
of the spine and musculoskeletalsystem and the manner in which she uses treatment procedures to
improve the vertebral subluxation complex or the biomechanics of the musculoskeletal system.5
Finding No.4—failure to provide disclosures under Healing Arts Identification Act
Brooks also contends that the Board lacked substantial evidence for its Finding No. 4
that she failed to provide disclosures under the Healing Arts Identification Act when she identified
herself as “Dr. Amber Brooks” and as a “biomedical doctor” on her website. We disagree.
The Act requires that chiropractors using their names on any written or printed
professional identification shall also designate the healing art they are licensed to practice by
using either “chiropractor,” “doctor, D.C.,” “doctor of chiropractic,” or “D.C.” Tex. Occ. Code
§ 104.003(e). Here, it is undisputed that Brooks is not a physician or medical doctor. It is also
undisputed that she identified herself as a “biomedical doctor” and “one of only a few pediatric
biomedical doctors in the area” on her website. Further, the site implies she is a physician by
referring to her “mentoring and consulting other physicians and practitioners.”6 (Emphasis added.)
5
Brooks also challenged the Board’s Finding No. 1 that all jurisdictional requirements
have been met. Having concluded that Brooks made offers to treat on her website exceeding the
statutory scope of chiropractic, we reject her contention that the Board lacks jurisdiction over her as
a chiropractor. See Texas Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n, 375 S.W.3d 464, 467
(Tex. App.—Austin 2012, pet. denied) (noting that chiropractor who exceeds statutory scope of
chiropractic would be subject to Medical Practice Act).
6
A chiropractor is not a physician, and blurring distinctions between them can mislead the
public about their respective levels of education and training. Seabolt v. Texas Bd. of Chiropractic
Exam’rs, 30 F. Supp. 2d 965, 968 (S.D. Tex. 1998) (rejecting argument that chiropractor should be
identified as “chiropractic physician” and noting that “[a] chiropractor does not attend medical
school, and chiropractic training differs significantly from that of medical doctors. In particular,
11
Brooks acknowledged the concern about her omitted statutory disclosure by testifying, “I see the
Board’s point.” She also stated that if someone does not read her whole web page, “I don’t want
them to be confused about that,” and she subsequently added “D.C.” to every place where her name
appears on the site. We conclude that the evidence in this record as a whole provides a reasonable
basis for the Board’s Finding No. 4 that Brooks failed to provide disclosures under the Healing Arts
Identification Act when she identified herself as “Dr. Amber Brooks” and as a “biomedical doctor”
on her website.
Having considered and rejected Brooks’s challenges to the evidence supporting the
Board’s Findings 3-5, we overrule her first issue.
Lack of SOAH hearing on cease-and-desist order
In her second issue, Brooks contends that the district court erred in concluding
that the Board’s order “was not made through unlawful procedure, was not in excess of statutory
authority, and does not violate any statutory or constitutional provision.” Specifically Brooks
contends that her cease-and-desist order resulted from an improper hearing before the Board instead
of the State Office of Administrative Hearings (SOAH) and that the Medical Board improperly
delegated issuance of the cease-and-desist order to a disciplinary panel.7 We disagree.
most medical doctors spend several years in supervised clinical training after medical school
while most new chiropractors go immediately into practice.”); see Tex. Occ. Code § 104.003(b), (c)
(classifying medical doctors and osteopaths as “physicians”).
7
Brooks also challenges the Board’s Finding No. 1 that she “received all notice required
by law” for the cease-and-desist hearing. But she waived this complaint by appearing and
participating in the hearing without objecting to lack of proper notice. See Tex. R. App. P. 33.1(a);
Sloan v. Rivers, 693 S.W.2d 782, 784 (Tex. App.—Fort Worth 1985, no writ) (party waived
complaint about lack of full ten days’ notice of hearing by appearing and participating in hearing
without objection).
12
Nothing in the Medical Board’s enabling statute or rules specifies that cease-and-
desist hearings regarding the unlicensed practice of medicine must be conducted by SOAH. See
Tex. Occ. Code § 165.052; 22 Tex. Admin. Code § 187.83. The statute authorizing cease-and-desist
orders states, in relevant part:
If it appears to the board that a person who is not licensed under this subtitle
[“Physicians”] is violating this subtitle, a rule adopted under this subtitle, or another
state statute or rule relating to the practice of medicine, the board after notice and
opportunity for a hearing may issue a cease and desist order prohibiting the person
from engaging in the activity.
Tex. Occ. Code § 165.052(a). Had the Texas Legislature intended for SOAH to conduct cease-and-
desist hearings for the unlicensed practice of medicine, it could have plainly articulated that
requirement—just as it did in the preceding section of the statute on disciplinary actions against
medical licenseholders. See id. § 164.007 (specifying that “A formal hearing shall be conducted by
an administrative law judge employed by the State Office of Administrative Hearings.”); see also
Tex. Gov’t Code § 2001.054 (stating that provisions of Administrative Procedure Act apply to grant,
denial, or renewal of license—including such disciplinary enforcement actions as “revocation,
suspension, annulment or withdrawal of a license”—that must be preceded by notice and opportunity
for hearing).
Brooks argues alternatively that even if the Medical Board may conduct hearings on
cease-and-desist orders, it lacked authority to delegate the issuance of those orders to a disciplinary
panel, rather than the full Medical Board. See Tex. Occ. Code § 153.005(b) (authorizing Medical
Board to act through committee that considers matters referred to it and makes recommendations
to Medical Board on those matters). But here the cease-and-desist order had the approval of the
13
full Medical Board. After the disciplinary panel conducted the cease-and-desist hearing against
Brooks and determined that the order should issue, the Medical Board considered and approved
the cease-and-desist order at its regularly scheduled open meeting. Brooks does not dispute that her
cease-and-desist order was adopted by the full Medical Board.8
Brooks’s second issue is overruled.
CONCLUSION
Having overruled both of Brooks’s appellate issues, we affirm the district court’s
judgment.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: June 18, 2015
8
Because we conclude that sections 153.005 and 165.052 of the Occupations Code allow
the Medical Board to conduct cease-and-desist hearings concerning the unlicensed practice of
medicine and to use a disciplinary panel in determining whether such orders should issue, we reject
Brooks’s contention that the administrative rule implementing those statutes, Rule 187.83, exceeded
the Medical Board’s authority and was unauthorized. See Tex. Occ. Code §§ 153.005(b), 165.052;
22 Tex. Admin. Code § 187.83.
14