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Bedford v. Riello

June 18, 2008

CAROL BEDFORD AND H. PAUL BEDFORD, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
ANTHONY L. RIELLO, D.C., PETER E. LOWENSTEIN, D.C. AND COASTAL CHIROPRACTIC, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 392 N.J. Super. 270 (2007).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue before the Court is whether the chiropractic adjustment of an extremity -- a knee in this case -- falls within the permitted scope of chiropractic practice under New Jersey law. Specifically, the Court addresses whether adjustment of a knee is within the contemplation of N.J.A.C. 13:44E-1.1(a), which allows for chiropractic manipulation of the "articulations of the spine and related structures."

In July 2001, Carol Bedford filed a malpractice action against Dr. Anthony Riello and Dr. Peter Lowenstein (collectively defendants), alleging that she sustained injuries as a result of defendants' negligent adjustments of her left knee. In an in limine motion filed on the eve of trial, Bedford sought to introduce testimony that the statute, N.J.S.A. 45:9-14.5, and regulation, N.J.A.C. 13:44E-1.1(a), that govern the practice of chiropractic in New Jersey prohibit adjustment of a patient's knee and sought to bar defendants from producing witnesses to the contrary. The trial judge declined to consider this argument because Bedford's complaint and interrogatory answers had not asserted that defendants violated the statute. The judge did address the issue of a regulation violation, noting that the plain language of N.J.A.C. 13:44E-1.1(a) includes adjustment of the spine and "related structures;" thus, the regulation is broad enough to include adjustment of extremities, including the knee.

At the conclusion of trial, a jury returned a verdict in favor of defendants. Bedford appealed to the Appellate Division, focusing on the trial court's ruling on the in limine motion. The Appellate Division reversed the decision of the trial court, concluding that, based on the language of the statute, and as a matter of law, the practice of chiropractic is confined to adjustments of the articulations of the spinal column and does not include adjustment of the extremities. The panel further concluded that the trial judge should have instructed the jury that knee adjustments were outside the scope of legitimate chiropractic practice and, as such, could be considered evidence of negligence. The Appellate Division remanded the matter back to the trial court for a new trial.

The Supreme Court granted certification.

HELD: N.J.A.C. 13:44E-1.1(a) permits manipulation of articulations beyond those of the spine when there is a causal nexus between a condition of the manipulated structure and a condition of the spine. Whether adjustment of a particular portion of the body is permissible as a "related structure" under the rule must be determined and demonstrated by the practitioner on a case-by-case basis, focusing on whether a condition to the adjusted structure bears a causal relationship to a condition of the spine.

1. The Court first considers the history of chiropractic regulation. In 1953, the Legislature amended the statutory definition of chiropractic to its current version: "A system of adjusting the articulations of the spinal column by manipulation thereof." In 1984, the State Board of Medical Examiners set forth in regulations the scope of chiropractic as "the manipulation of the articulations of the spine and related structures." In 1989, the Legislature passed the Chiropractic Board Act (Act), which transferred responsibility for the licensing of chiropractors to the new State Board of Chiropractic Examiners (Board). The Act left unaltered the statutory definition of chiropractic adopted in 1953. Nor did the Act alter or otherwise affect the "related structures" regulation. Continuous revisions of the Board's regulations have reaffirmed or left unchanged the "related structures" language. (Pp. 8-16)

2. The Court looks to the language of the current statute and regulation to determine if an extra-spinal adjustment may take place and under what circumstances, consistent with those laws. It is clear from the plain language of N.J.A.C. 13:44E-1.1(a) that the rule contemplates adjustments that are not limited to the spine. Although the term "related structures" is not defined in the rule and cannot be given ready meaning from the language itself, it is clear that the rule intends to include within the scope of chiropractic practice the adjustment of some structures beyond the articulations of the spine itself. Any other interpretation would render the "related structures" language superfluous. (Pp. 16-18)

3. It cannot be determined from the words of the rule itself the import of the term "related structures." Therefore, the Court considers an extrinsic source - the long-standing interpretation of that term by the Board. Over the past two decades, the Board has recognized that adjustment of "related structures" is allowed only to the extent that a condition of the structure adjusted impacts on, contributes to, or has a nexus to a spinal condition or vice versa. In addition, the Board requires that nexus to be "demonstrated" in the clinical record. Because the interpretation of the agency empowered to administer the laws governing chiropractic is a clear and unequivocal one, that does no violence to the words of the rule, the Court recognizes it here. Whether adjustment of a particular portion of the body is permissible as a "related structure" under the rule must be determined and demonstrated by the practitioner on a case-by-case basis, focusing on whether a condition to the adjusted structure bears a causal relationship to a condition of the spine. Whether the adjustment of a knee properly falls within the scope of chiropractic practice under the rule must be determined on the facts of each case. (Pp. 18-20)

4. The Court also must determine whether the rule as interpreted exceeds statutory limitations on the scope of chiropractic practice as set forth in N.J.S.A. 45:9-14.5. Because the legislature is presumed to act with knowledge of the continuous construction the Board has placed on the statute, its reenactment of the 1953 language without change in 1989 leads to the conclusion that it was satisfied with the Board's interpretation. The Legislature's longstanding acquiescence to the Board's interpretation of the Act signals that it did not intend to prohibit all extra-spinal manipulation. It appears the Legislature was satisfied to allow the Board to provide nuances of the statutory scheme, including permitting extra-spinal adjustments that are related to a spinal condition. As such, there is no prohibition against extra-spinal manipulation in our current law. Whether the adjustment of a structure beyond the spine properly falls within the scope of chiropractic practice depends on whether the adjustment bears a nexus to a condition of the spine. (Pp. 20-24)

5. The matter must be remanded for a new trial where the parties may present expert evidence regarding whether a condition of the knee adjusted in this case bore a nexus to a spinal condition, qualifying it as a manipulation of a related structure. (Pp. 24-25)

Judgment of the Appellate Division is AFFIRMED AS MODIFIED for the reasons set forth and the matter is REMANDED for a new trial consistent with this opinion.

JUSTICE ALBIN, concurring in part and dissenting in part, in which JUSTICE RIVERA-SOTO joins, concurs in Parts I through IV and Parts VI and VII of the majority's opinion and in the judgment of the Court. However, because the majority upholds the Board's errant interpretation of the statute hat allows chiropractors to manipulate every joint throughout the body, Justice Albin cannot join in Part V of the Court's opinion. Since chiropractors have continued to rely on the Board's interpretation, Justice Albin would invalidate N.J.A.C. 13:44E-1.1(a) prospectively and would stay the effect of that invalidation for ninety days to allow the Legislature to enact, if it wished, any supplemental legislation necessary to expand the scope of chiropractic to conform with current practices.

JUSTICES LaVECCHIA, WALLACE, and HOENS join in JUSTICE LONG's opinion. JUSTICE ALBIN filed a separate opinion concurring in part and dissenting in part, in which JUSTICE RIVERASOTO joins. CHIEF JUSTICE RABNER did not participate.

The opinion of the court was delivered by: Justice Long

Argued March 25, 2008

The essential question presented in this appeal is whether the adjustment of an extremity -- in this case a knee -- falls within the permitted scope of chiropractic practice under New Jersey law. More particularly, the issue is whether adjustment of a knee is within the contemplation of N.J.A.C. 13:44E-1.1(a), which allows for chiropractic manipulation of the "articulations of the spine and related structures." The trial judge held, as a matter of law, that a knee is always a "related structure" under the rule. The Appellate Division disagreed concluding, also as a matter of law, that a knee can never be considered a "related structure" because N.J.S.A. 45:9-14.5 limits chiropractic practice to manipulation of "the articulations of the spinal column." We decline to adopt either view. An extremity is neither never nor always a related structure. Under the laws governing chiropractic practice, the issue in every case is whether a condition of the extremity manipulated is logically connected, by cause or effect, to a spinal condition. If it is, the practice is legitimate; if not, it exceeds the authorized scope of chiropractic. The question is one of fact to be resolved on a case-by-case basis.

I.

In July 2001, plaintiff Carol Bedford filed a malpractice action against defendants, Drs. Anthony Riello and Peter Lowenstein (collectively defendants). Plaintiff's complaint alleged that she sustained injuries as a result of defendants' negligent adjustments of her knee.

In an in limine motion on the eve of trial, plaintiff sought to introduce testimony that the statute, N.J.S.A. 45:9-14.5, and regulation, N.J.A.C. 13:44E-1.1, that govern the practice of chiropractic in New Jersey prohibit adjustment of a patient's knee and sought to bar defendants from producing witnesses to the contrary. Because plaintiff's complaint and interrogatory answers had not asserted that defendants violated the statute, the judge refused to consider that argument. However, plaintiff had claimed a violation of the regulation during discovery, and thus, the judge addressed whether the scope of chiropractic practice under the regulation permits adjustment of the knee.

Noting that the plain language of N.J.A.C. 13:44E-1.1(a) includes adjustment of the spine and "related structures," the judge held that the regulation is broad enough to include adjustment of extremities, such as the knee. Having determined the scope of "related structures" as a matter of law, the judge also held that plaintiff's witnesses could not testify that the term "related structures" means only the sacroiliac, occiput, and rib heads, as plaintiff had proffered. The matter proceeded to a trial at which the following evidence was adduced.

Dr. Lowenstein treated plaintiff numerous times for lower-back and hip complaints. Dr. Riello shared an office with Dr. Lowenstein and also occasionally treated plaintiff. According to plaintiff, on December 28, 1999, she was seen by Dr. Riello because Dr. Lowenstein was on vacation. She told Dr. Riello that she was experiencing pain in her right hip and in her left knee. Dr. Riello adjusted plaintiff's back and then proceeded to adjust her knee by draping her left leg over his forearm and "push[ing] down . . . like a lever." Plaintiff testified that she "heard a pop and [felt a] burning immediately." When plaintiff got off of the examination table, her knee throbbed, burned, and "hurt[] . . . very badly." Plaintiff told Dr. Riello that she was experiencing pain and he responded that she should put ice on her knee.

Plaintiff saw Dr. Lowenstein after he returned from vacation. At that appointment, plaintiff complained that Dr. Riello had adjusted her knee. Dr. Lowenstein responded that he would have done the "exact same thing." Plaintiff testified that Dr. Lowenstein then adjusted her back, hips, and knee; that she experienced pain during that adjustment as well; and that she again heard a popping sound. In July 2001, plaintiff underwent arthroscopic surgery to repair a torn meniscus in her left knee. She underwent surgery again in October 2001 to remove a cyst from behind the same knee.

Plaintiff introduced expert testimony from Dr. Robert McCutcheon, a chiropractor, who had been prohibited from testifying that knee adjustment falls outside the scope of chiropractic. He opined that defendants deviated from the standard of care by failing to properly examine plaintiff and by failing to identify any "subluxation" of the knee that required adjustment. He explained that a "subluxation" occurs when the connection between two bones "is not functioning properly" so that they are "fixed" in place.*fn1 Dr. McCutcheon described the procedure that Dr. Riello used as "probably the most forceful manipulation of any joint in the body." On cross-examination, Dr. McCutcheon acknowledged that Dr. Riello's technique was proper, assuming adjustment was required.

Dr. Riello testified that he adjusted Plaintiff's knee "so that it doesn't affect anything in the spine." He explained that the adjustment corrected a "posterior tibial subluxation" that was related to plaintiff's knee pain. Further, according to Dr. Riello, the procedure he used to adjust plaintiff's knee did not involve pressure and posed no risk of meniscal tear.

Dr. Lowenstein denied having adjusted plaintiff's knee. He also testified that, although a chiropractor's "focus is always on the spine," they "are licensed to check and align subluxations of the spine and associated articulations."

The defense also introduced expert testimony by Dr. Philip Santiago, a chiropractor who previously served on the Board of Chiropractic Examiners. He testified that chiropractors routinely adjust extremities, including the knee, and that such adjustments are appropriate because there is a "kinetic linkage" between the extremities and the spine. Dr. Santiago explained that a knee adjustment is a benign procedure that carries no complications or risks, and that the procedure cannot cause meniscal tears. He also explained that knee adjustments normally cause popping sounds, which result from "gas bubbles break[ing]" when the joint is pulled apart.

A jury returned a verdict in defendants' favor which plaintiff appealed, focusing on the in limine ruling. In a published opinion, the Appellate Division reversed. Looking to the language of N.J.S.A. 45:9-14.5 for guidance in interpreting the regulation, the panel concluded that, as a matter of law, the practice of chiropractic is confined to adjustments of the articulations of the spinal column and does not include adjustment of the extremities. Bedford v. Riello, 392 N.J. Super. 270, 280-81 (App. Div. 2007). The panel went on to hold that the trial judge should have instructed the jury that knee adjustment is outside the scope ...


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