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Licensee’s use of unproven diagnostic device is cause for discipline

A Pennsylvania court, in a May 8 decision, upheld discipline imposed by the state's Board of Chiropractic on a licensee who advertised the use of a miraculous diagnostic tool in his practice, claiming, among other things, that the device was capable of diagnosing types of cancer and infectious diseases using minimal physical input.

(Bennett v. Bureau of Professional and Occupational Affairs)

The case concerned the use by chiropractor Lawrence Bennett of a device called the Asyra, a “bio-energetic screening system” advertised as being able to diagnose a patient for several conditions.

 Despite the fact that the only patient input was the holding of two brass handles attached to the device, Bennett advertised that the use of the device could determine a patient’s “overall state of health,” as well as “the number of toxins being stored in your body . . . [and] which organs these toxins are being stored in,” and, in more conventional chiropractic purview, the device could determine whether particular parts of the body were “misaligned.”

The board received a complaint about Bennett’s ad in 2012, and, after investigating for two years, filed several charges. After the conclusion of disciplinary proceedings, the board concluded that Bennett had committed unprofessional conduct by advertising and using the Asyra.

 In particular, the board determined that Bennet advertised the device to diagnose and treat conditions outside the scope of chiropractic medicine, noting that Bennett had claimed, among other things, that the device was capable of diagnosing breast cancer. It suspended Bennett’s license for three years, albeit with only 3 of the 36 months as an active suspension, and fined him $10,000. Bennett appealed, and the case went up to the state’s Commonwealth Court, which affirmed the board’s decision. Bennett argued that the board had overstepped its bounds by disciplining him for the use of the Asyra and claiming that he had used it only for nutritional counseling, a subject outside of the board’s authority and not subject to any licensing restrictions.

This defense was a major mistake on the part of Bennett and his attorneys. Although the act of nutritional counseling does not require a chiropractic license, the use of nutritional counseling by a licensed chiropractor is included within the definition of “chiropractic” in Pennsylvania’s Chiropractic Practice Act. Bennett’s claim to the contrary, wrote Judge Robin Simpson, “ignores the plain language in the Act . . . Nutritional counseling is expressly within the scope of chiropractic that is subject to Board regulation and discipline when that activity is performed by a licensed chiropractor.”

From section 102 of the Chiropractic Practice Act, defining “chiropractic”: The term shall also include diagnosis, provided that such diagnosis is necessary to determine the nature and appropriateness of chiropractic treatment; the use of adjunctive procedures in treating misaligned or dislocated vertebrae or articulations and related conditions of the nervous system, provided that, after January 1, 1988, the licensee must be certified in accordance with this act to use adjunctive procedures; and nutritional counseling, provided that nothing herein shall be construed to require licensure as a chiropractor in order to engage in nutritional counseling.
Additionally, on the facts of the case, Judge Simpson noted that Bennett’s use of the device was not limited to nutritional counseling. “As described in the Newsletter and his testimony, Licensee did not separate nutritional counseling from chiropractic care.”

“Rather, the Device was a part of the regular care he provided to his patients” as a chiropractor, the judge wrote. Thus, the board had not overstepped its authority by disciplining Bennett for his activities in that field.

Reviewing Bennett’s argument that the board did not have sufficient evidence to hold that he had engaged in unprofessional conduct, the court noted that Bennett claimed, in his newsletter, to be able to treat both cancer and infectious diseases, two conditions not within the scope of chiropractic care.

The court also agreed with the board that the device was not approved by the board for use in chiropractic and that Bennett had no specialized training in its use, a fact that he admitted to. All of these facts were established, and were sufficient to discipline Bennett.

In addition, the court held that the board had substantial evidence that Bennett had engaged in false advertising. Bennett had included a disclaimer in the advertising stating the information therein was not medical advice. But the disclaimer’s location—away from the ad proper, below information about bus schedules—and reduced size removed it sufficiently from the ad’s contents as to render its effect null, the court said.

 “In reviewing the Newsletter, the Board was permitted to consider the patient testimonials and misleading impressions from same as having more impact on the reader, creating overall false impressions that would not be allayed by the disclaimer.”