Chiropractor and Osteopath Association

Can chiropractors and osteopaths share the same professional corporation, since both provide overlap health care services?

This is the kind of question that can only be answered by careful legal research. Our law office will typically look at state Attorney General opinions, if they are searchable, in addition to statutes, cases, and administrative regulations by the relevant board (in this case, of chiropractic and of osteopathy, though it could also be of nursing, medicine, acupuncture, homeopathic medicine, naturopathic medicine, massage therapy, and so on, as the case may be).

Here is one example of an AG opinion, this time from Michigan:

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

PUBLIC HEALTH CODE:

CHIROPRACTORS:

Authority to organize a professional service corporation to provide medical and chiropractic services

A chiropractor may not organize a professional service corporation with an allopathic or osteopathic physician for the purpose of providing medical and chiropractic services.

Opinion No. 7151

March 9, 2004

Honorable Ken Bradstreet
State Representative
The Capitol
Lansing, Michigan 48909

You have asked if the Professional Service Corporation Act, MCL 450.221 et seq, permits a chiropractor to organize a professional service corporation with an allopathic or osteopathic physician for the purpose of providing medical and chiropractic services.

The practice of chiropractic, the practice of medicine, and the practice of osteopathic medicine and surgery are all regulated under Article 15 of the Public Health Code, MCL 333.16101 et seq. Section 4(3) of the Professional Service Corporation Act addresses the ownership of corporations that provide professional services included within the Public Health Code as follows:

Except as otherwise provided in this subsection, if the professional corporation renders a professional service that is included within the public health code, 1978 PA 368, MCL 333.1101 to 333.25211, then all shareholders of the corporation shall be licensed or legally authorized in this state to render the same professional service. One or more physicians and surgeons licensed under the public health code, 1978 PA 368, MCL 333.1101 to 333.25211, may organize a professional corporation under this act with 1 or more physicians and surgeons licensed under different provisions of the public health code, 1978 PA 368, MCL 333.1101 to 333.25211. [MCL 450.224(3).]

The answer to your question requires analysis of two issues: (1) whether chiropractors are "licensed . . . to render the same professional service" as allopathic or osteopathic physicians,1 and (2) whether chiropractors are "physicians and surgeons" as that term is used in section 4(3) of the Professional Service Corporation Act.

Section 2(c) of the Professional Service Corporation Act defines "professional service" as:

[A] type of personal service to the public that requires as a condition precedent to the rendering of the service the obtaining of a license or other legal authorization. Professional service includes, but is not limited to, services rendered by certified or other public accountants, chiropractors, dentists, optometrists, veterinarians, osteopaths, physicians and surgeons, doctors of medicine, doctors of dentistry, podiatrists, chiropodists, architects, professional engineers, land surveyors, and attorneys at law. [MCL 450.222(c); emphasis added.]

In determining whether chiropractors, doctors of medicine, and doctors of osteopathic medicine and surgery render the same professional service, it is necessary to examine the scope of practice of each profession. Section 16401(1)(b) of the Public Health Code defines the "practice of chiropractic" as:

[T]hat discipline within the healing arts which deals with the human nervous system and its relationship to the spinal column and its interrelationship with other body systems. Practice of chiropractic includes the following:

(i) Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care.

(ii) A chiropractic adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.

(iii) The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to section 16423, and the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine. The practice of chiropractic does not include the performance of incisive surgical procedures, the performance of an invasive procedure requiring instrumentation, or the dispensing or prescribing of drugs or medicine. [MCL 333.16401(1)(b); emphasis added.]

Section 17001(1)(d) of the Public Health Code defines the "practice of medicine" as:

[T]he diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts. [MCL 333.17001(1)(d).]

Section 17501(1)(c) of the Public Health Code defines the "practice of osteopathic medicine and surgery" as:

[A] separate, complete, and independent school of medicine and surgery utilizing full methods of diagnosis and treatment in physical and mental health and disease, including the prescription and administration of drugs and biologicals, operative surgery, obstetrics, radiological and other electromagnetic emissions, and placing special emphasis on the interrelationship of the musculoskeletal system to other body systems. [MCL 333.17501(1)(c).]

While there is some overlap between the practice of chiropractic and the practice of medicine or osteopathic medicine, the services offered by chiropractors are not the same as those offered by allopathic or osteopathic physicians. The practice of chiropractic is a limited subcategory of the practice of medicine. Attorney General v Beno, 422 Mich 293, 311; 373 NW2d 544 (1985); Green v Rawlings, 290 Mich 397, 399; 287 NW 557 (1939); Erdman v Great Northern Life Ins Co, 253 Mich 579, 583; 235 NW 260 (1931); Locke v Ionia Circuit Judge, 184 Mich 535, 542-545; 151 NW 623 (1915); OAG, 1969-1970, No 4695, p 179, 180-181 (September 16, 1970); OAG, 1961-1962, No 4046, p 452 (July 20, 1962). Since section 16401(1)(b) of the Public Health Code limits chiropractors to the treatment of spinal subluxations or misalignments and prohibits them from performing surgery or prescribing drugs, the practice of chiropractic is much narrower than either the practice of medicine or of osteopathic medicine and surgery. OAG, 1993-1994, No 6797, p 141, 142 (May 13, 1994).

In addition, after reviewing applicable case law, OAG, 1979-1980, No 5503, p 223, 225 (July 5, 1979), explained that "[c]hiropractors perform their activities in accordance with a theory of healing which is different from that which underlies the practice of medicine or the practice of osteopathic medicine and surgery" and concluded that "chiropractors are required to adhere to the tenets of their separate healing systems." Thus, "as neither a doctor of medicine nor a doctor of osteopathy renders chiropractic services, only a practitioner of the chiropractic system of healing renders 'chiropractic services.'" Id., at 226. Similarly, OAG, No 6797, at 142-143, explained that "[a]llopathic and osteopathic physicians may treat the same conditions using a similar procedure to that used by chiropractors, but, because of differences in knowledge, skill, training, approach and professional responsibility, the services rendered are not the same."

Therefore, since the scope of practice of chiropractic is limited to treatment of spinal subluxations and misalignments, and since chiropractors may not perform surgery or prescribe drugs, chiropractors are not licensed to render the same professional services as allopathic or osteopathic physicians.

The first sentence of section 4(3) of the Professional Service Corporation Act requires that shareholders be licensed to render the same professional service "[e]xcept as otherwise provided in this subsection." MCL 450.224(3). The second sentence of section 4(3) provides an exception as follows:

One or more physicians and surgeons licensed under the public health code . . . may organize a professional corporation under this act with 1 or more physicians and surgeons licensed under different provisions of the public health code . . . ." [MCL 450.224(3); emphasis added.]

"'Each word of a statute is presumed to be used for a purpose, and, as far as possible, effect must be given to every clause and sentence.'" Levy v Martin, 463 Mich 478, 493-494; 620 NW2d 292 (2001), quoting Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). The second sentence of section 4(3), allowing physicians and surgeons licensed under different provisions of the Public Health Code to organize a corporation, only has purpose and effect if the first sentence requires that all shareholders hold the same professional license. Accordingly, chiropractors may only organize corporations with allopathic or osteopathic physicians if they are "physicians and surgeons" within the meaning of the second sentence of section 4(3) of the Professional Service Corporation Act.

The Professional Service Corporation Act does not define the term "physician and surgeon." "The meaning to be given to the term 'physician and surgeon' must and does depend in a large measure on the context in which the term appears and the intended meaning and application of the term within such context and the subject matter." OAG, 1961-1962, No 4014, p 287, 288 (February 22, 1962). See also Tyler v Livonia Public Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999) (stating the rule of statutory construction).

Section 16401(1)(a) of the Public Health Code recognizes the term "chiropractic physician" as an alternate name for a chiropractor. Numerous Attorney General opinions have concluded that chiropractors are physicians as that term is used in the context of certain statutes. OAG, No 4695, at p 181 (chiropractors are physicians providing medical services under the Michigan Social Welfare Act); OAG, No 4046, at p 452 (chiropractors are physicians within the limitations of chiropractic licensure law); OAG, 1951-1952, No 1247, p 12 (July 19, 1950) (chiropractors are physicians under the act governing county public hospitals). Conversely, other opinions have concluded that chiropractors are not physicians in the context of other statutes. OAG, 1987-1988, No 6523, p 338 (June 9, 1988) (chiropractors are not physicians in the context of the crippled children's program); 1 OAG, 1959-1960, No 3346, p 7 (January 26, 1959) (chiropractors are not physicians under the county medical examiner act); 1 OAG, 1955-1956, No 1894, p 2 (January 7, 1955) (chiropractors are not physicians under an administrative rule requiring physical examinations of students engaged in interscholastic activities); OAG, 1941-1942, No 23051, p 552 (March 18, 1942) (chiropractors are not physicians under the act regulating boxing and wrestling).

Assuming chiropractors are physicians for some purposes, this does not mean that they are "physicians and surgeons" within the context of the Professional Service Corporation Act. Every word of a statute must be given purpose and effect. Levy v Martin, 463 Mich at 493-494. It must be presumed that the Legislature used the phrase "physician and surgeon," rather than "physician" alone, for a reason. In addition, the conjunctive "and" should be read literally, as long as an "accurate reading does not render the sense dubious." Indenbaum v Michigan Bd of Medicine, 213 Mich App 263, 272; 539 NW2d 574 (1995). Thus, the phrase "physician and surgeon" indicates a physician who can perform surgery. While many allopathic and osteopathic physicians do not perform surgery, the general categories of licensed health professionals to which they belong are legally authorized to do so. Since section 16401(1)(b)(iii) of the Public Health Code specifically prohibits chiropractors from performing surgery, they are not "physicians and surgeons."

Information supplied with your request indicates that the Department of Consumer and Industry Services, Bureau of Commercial Services, accepts for filing articles of incorporation for professional service corporations organized by podiatrists and allopathic or osteopathic physicians. There is no inconsistency between this policy and the Bureau's refusal to allow chiropractors to incorporate with allopathic or osteopathic physicians. Unlike chiropractors, podiatrists are authorized to perform surgery and are considered "physicians and surgeons" under the Public Health Code. See Public Health Code sections 18001(1)(a) and (b), 18011, 18012(1), and 18033(1). MCL 333.18001(1)(a) and (b), MCL 333.18011, MCL 333.18012(1), and MCL 333.18033(1). See also OAG, 1961-1962, No 4014, p 287 (February 22, 1962) (holding that chiropodists, i.e., podiatrists, are physicians and surgeons under a licensing statute preceding the Public Health Code).

The legislative analysis of House Bill 4944, which became 1997 PA 139 and which added the second sentence to section 4(3) of the Professional Service Corporation Act, explains the history behind the Bureau's policy of allowing podiatrists to incorporate with allopathic and osteopathic physicians:

The Professional Service Corporation Act permits professionals such as attorneys, physicians, and accountants to incorporate as professional service corporations (PCs). Under the act, one or more licensed persons may organize to become a shareholder or shareholders of a PC. A professional corporation may render one or more professional services, but each shareholder must be licensed in one or more of the professional services rendered by the PC. However, under the act, if a PC renders a professional service that is included within the Public Health Code, all of its shareholders must be licensed or legally authorized to render the same professional service.

Historically, the Corporation and Securities Bureau within the Department of Consumer and Industry Services interpreted the phrase "render the same professional service" as requiring that all the shareholders in a PC hold the same license. For instance, a dentist may form a PC with another dentist, but not with a chiropractor. This was also interpreted as meaning that a doctor of medicine (MD) could not form a PC with an osteopath (DO) or a podiatrist (DPM).

In response to requests, the bureau reviewed the statutory language and issued Release 94-1-C in February of 1994. In the directive, the bureau concluded that the act's definition of "professional service" did "not necessarily require that the shareholders possess the same license, but rather that the person be licensed to provide the same professional service." The act defines "professional service" in part as including, but not limited to, "services rendered by certified or other public accountants, chiropractors, dentists, optometrists, veterinarians, osteopaths, physicians and surgeons, doctors of medicine, doctors of dentistry, podiatrists, chiropodists, architects, professional engineers, land surveyors, and attorneys at law." The directive went on to point out that though the definition specifically mentioned MDs, DOs, and DPMs, it also specified physicians and surgeons as a category. Since MDs, DOs, and DPMs may be denoted as physicians and surgeons under administrative rules and provisions of the Bureau of Occupations and Professional Regulation, the director of the Corporation and Securities Bureau ruled that "surgeons and physicians possessing any of the specific licenses may be shareholders in a professional service corporation where the professional services are to be rendered by physicians and surgeons."

Since the release of the directive, doctors of medicine, osteopaths, and podiatrists have been permitted to form professional service corporations with each other. However, some physicians and surgeons have expressed a concern that the statutory language remains ambiguous and have requested that the law be amended to more clearly reflect the bureau's current practice. [House Legislative Analysis, HB 4944, October 8, 1997.]

The legislative analysis goes on to state that "[t]he bill would therefore permit persons licensed to practice medicine (MDs), osteopathic medicine and surgery (DOs), and podiatric medicine and surgery (DPMs) to form professional corporations with each other." Id.

Thus, the legislative history of 1997 PA 139 confirms that, by choosing the terms "physicians and surgeons" when it added the second sentence to section 4(3) of the Professional Service Corporation Act, the Legislature only intended to allow podiatrists, allopathic physicians, and osteopathic physicians to incorporate with one another.

It is my opinion, therefore, that a chiropractor may not organize a professional service corporation with an allopathic or osteopathic physician for the purpose of providing medical and chiropractic services.

MIKE COX
Attorney General

1The term "allopathic physician" refers to a person who holds a doctor of medicine degree and is licensed to practice under Article 15, Part 170, of the Public Health Code, MCL 333.17001 et seq.

You will find that this is very much written as a legal opinion. It sets forth clear, unambiguous parameters. If you have a clear AG opinion such as this, it can provide a lot of guidance to help shape your practice within legally defensible boundaries.