RICHARD HERFERT, D. C.

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
JOHN HOFMANN, D.C. and
RICHARD
HERFERT,
D.C. ,
Plaintiffs
and
counter-Defendants,
Case No. 85-500355
Hon. Kaye Tertzag
vs.
CZ
..
AUTO CLUB
INSURANCEASSOCIATfoN,
a foreign corporation,
Defendant and
Counter-Plaintiff.
/
OPINION
At
in
of
of
a session of the said Court, held
the city-County Building, city
Detroit, County of Wayne, State
Michigan on August 29, 1990.
PRESENT:
HONORABLE
KAYE TERTZAG,
Below is the portion of an 86-page opinion in which
the judge ruled that the chiropractic plaintiffs were not
entitled to insurance payments for thermography scans.
CIRCUIT JUDGE
tor
te,
THERMOGRAPHY
The Court has heard testimony from experts from various fields
concerning thermography. Testimony was received from the two
Plaintiffs, Plaintiffs' expert, William Dudley, D.C., as well as
Susan.
Vlasuk, D.C., who was called as a rebuttal witness for the
Plaintiffs.
The Defendant presented the testimony of two medical
doctors, E. James Potchen, M.D., and Michael Sperl, M.D. Defendant
also present~d:the testimony of two doctors of chiropractic, James
Freas, D.C. and Charles DuVall, D.C. Defendant also presented the
40
- -- -- -- --
~
~
- _--H
-
- --
---
<,
testimony of J.
medical
doctor
Alan Robertson,
M.D., D.C.,
and a doctor
of chiropractic.
who is
licensed
Thermoqraphv
Devices
Defined
There
are
a variety
of
thermographic
devices.
thermographic devices measure heat emitted from an object.
as
a
All
Heat
is transferred by several physical means known as convection,
[XVIII,
47]
Testimony
conduction and infrared radiation.
centered primarily around three basic types of thermographic
.
devices:
electronic infrared, liquid crystal and thermoscribe.
Thermoscribe is similar in nature to a number of other "hand-held"
devices described as a dermathermograph, NCM and neurocalograph.
Although the various thermographic devices vary in sensitivity [V,
42; X, 50], all measure heat and are theoretically similar.
[Hofmann V, 13; C1um XI, 23; Dudley XII, 33; Potchen XVIII, 48-49;
Herfert XVI, 143, 145].
is a difference between thermography in the form of
There
infrared and liquid crystal, which are able to measure large
surface
areas
of
the
body,
and
to
the
thermoscribe;
dermathermograph and neuroca1ograph-type instruments, which are
limited to measuring the temperature on both sides of the spine.
[Dudley XII, 31, 33; Clum XI, 102].
In addition to differenc~s in the area of the skin which can
be measured, the devices also vary in seHsitivity with infrared
thermography being the most sensitive. [Dudley X, 50; Hofmann V,
42].
The Court finds- that with respect to human beings,
thermography devices measure skin temperature very near the
surface. [Dudley X, 47; Hofmann I, 77; V, 13; Potchen XVIII, 49].
Infrared and liquid crystal thermography produce images.
The
thermoscribe produces a paper graph. The Court finds- that the
images produced by the various thermographic devices are different
from those produced by other diag~stic devices which have known
efficacy. Testimony was received concerning a variety of other
imaging devices, including X-ray, CT scan and magnetic resonance
imaging. These devices directly depict the structures which they
image
[Potchen XVIII,
18-22, 24, 25], as cqmpared with
thermography, which only measures heat differentials from a variety
of physiological causes. [Hofmann I, 77; Potchen VIII, 16; Dudley
XII, 20; Herfert XIV, 29; Sperl XXXI, 173].
The question before this Court is whether the various
thermographic devices are within the scope of practice of
chiropractic
(b)
as defined by MCL 333.16401(1) (b), which states:
"Practice
of
chiropractic means that discipline
within the healing arts which deals with the nervous system
and its relationship to the spinal colunu:tand its interrelationship with
other body systems.
Practice
of
chiropractic includes:
: :(i) Diagnosis, including spinal analysis,
determine the existence of spinal subluxations
41
to
or
--- _n-------
__n_----
"
.
misalignments
the necessity
that produce nerve interference,
for chiropractic
care.
indicating
(ii) The 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
an
invasive
procedure
requiring
instrumentation, or the dispensing of prescribing of
drugs or medicine.
In interpreting
Supreme
MCL 333.16401,
Court decision of Attornev
this Court is governed by the
General vs. Beno, 422 Mich. 293
(1985). The key to the interpretation
of MCL
333.16401
is contained
of the diagnosis
in the Beno,. supra
opinion,
provisions
beginning
at page 311:
First, an examination of MCL.333.16401; MSA 14.15(16401)
in its entirety manifests to us an intent to carve out
of the healing arts genr~ a limited profession known as
chiropractic. While "practice of chiropractic... deals
with the nervous system" in relation to the rest of the
body, the diagnosis and treatment provisions of the Act
focus
specifically
on
spinal
subl~xations
or
misalignments.
MCL 333.16401(1) (b)(i), (ii); MSA
14.15(16401) (1)(b)(i), (ii). The Act does not contain
the general, all encompassingterms found in the ~
of the Code pertainingto the practice of medicine.
Second, MCL 333.6401(2); MSA 14.15(16401) (2) provides
that interpretation of the chiropractic section is guided
by general definitions and principles of construction in
Article
1 of the Public Health Code.
One of the
paramount rules of construction provides that, "[t]his
Code shall be liberally construed for the protection of
the health, safety, and welfare of the people of this
State. II MCL 333.111(2); MSA 14.15(1111) (2).
Where
there
are hazy lines-between
42
the jurisdiction
of
: ,
0
health care professions, we think the public health and
safety is best protected by more strictly construing the
jurisdiction of the more specialized and limited health
profession in favor of the more comprehensively trained
and licensed profession. It would seem to be more in
keeping with the public protection to have the broader
discipline making diagnostic. observations about those
things within the specialties of the narrower discipline,
rather than vice versa. See, Anno:
of Chiropractic,
Scope of Practice
16 ALR 4th, 58.
Thermographv Devices Do Not Locate O~ Determine Subluxations
This Court finds that there is no evidence that thermographic
devices of any type, in and of themselves, locate subluxations.
[Hofmann XXXI, 79-82; Dudley XII, 31; Herfert XV, 10; XVII, 45-46,
47-51].
Indeed, the testimony of the Plaintiffs
Dr. Dudley,
directly
ray
,
is consistent
that thermography,
locate a vertebral
subluxation.
and their expert,
unlike
X-ray,
Thermography,
cannot
unlike
X-
is not specifically referred to in the statute as a
diagnostic
device
which
chiropractors are enabled to use to
determine the existence of spinal subluxations or misalignments.
X-rays are generally accepted in tne chiropractic profession and
part of the standard of care for chiropractors.
taught in the core undergraduate curriculum.
Radiology
is
[Dudley X, 42]. It
is part of the chiropractic standard of care.
[DuVall XIV, 43;
Clum XI, 108].
However,
the testimony indicates that although X-rays are
within the standard of care, it is only an "assumption" that
thermography
is within the standard of care.
[Clum,
XI,
145].
In
fact, X-ray and thermography are "radically different in terms of
their application. II
[Clum
XI,
145].
43
Whereas
X-ray
is the chief
.
~
~
tool
diagnostic
of
[Hofmann III, 135], thermography
is related
to
subluxations.
is
and
chiropractic
universally
accepted
is based upon a "hypothesis"
[Herfert
XIV,
X-rays
29]..
that
locate
subluxations in the spine because they visualize the vertebrae,
whereas thermography scans beyond the spine [Hofmann V, 105-106;
Thermography looks for the "effects" of a subluxation
VI , 55].
[Hofmann XXXI,
87; Herfert
XXXI, 131].
It is clear from the record that thermography, of whatever
type, does not directly
the
own expert,
William
Dudley,
scan the entire body in oi'der to
subluxation.
[XII,
that
arrive
it is necessary
at
to
a diagnosis of
32].
Dudley testified
of thermography.
as does X-ray, where
It is clear from the testimony of
exist.
subluxations
Plaintiffs'
locate subluxations,
regarding
He has never
infrared and liquid crystal
used
the other
devices,
and
admitted to not knowing what dermathermography measures.
forms
in fact,
[X, 49].
It was his testimony that infraoredthermography is the most
sensitive
[X,
but he did not know
50],
how
sensitive
the
thermistors were on the NCM device, since he does ~ot use them.
[X,
51].
He indicated that he did not use the dermathermography
or NCM type devices because they were less reliable than the liquid
crystal
and infrared
thermographic
Dudley
also
felt that
calibration
more
quickly
variety.
hand-held
[XII,
de~iGes
94].
the
[XII,
hand-held
devices
than the
Although
infrared or
he basically
were better than nothing
44
91].
devices.
lose
their
liquid crystal
indicated
that
the
[XII, 91], he indicated
" ~
.~
that
the
NCM
dermathermogram,
useless in evaluating
and
are
thermo scribe
"faulted dermatome,"
basically
which was the basis upon
which he arrived at a diagnosis of subluxation.
[XII,
It was
33].
Dudley's opinion that if thermography was restricted to the spine
only, he would not be able to vouch for its reliability, and that's
the reason he scans the entire body.
[XII,
31].
It is clear that thermography does not directly locate
subluxations.
discloses
Hofmann was asked whether infrared thermography
the existence
of a subluxation,
and he
indicated
that
thermography shows the "physiologic effects of a subluxation," but
indicated,
"You don't see the bone out of place."
Testimony
from the other'Plaintiff,
Herfert testified
thermographic
that a thermoscribe
Dr. Herfert,
(one of
80].
was similar.
the brands
of
devices he uses) by itself does not indicate whether
there is a subluxation.
[XV,.
10].
It was also Herfert's
that all of the thermographic devices were
thermography,
[XXXI,
which
would
inclutie
crystal, infrared or neurocalograph.
testimony
interchangeable as
thermoscribe,
NCM,
liquid
[XVI, 144].
Thermoqraphv, Even If ScientificallY Valid,
Is For Differential Diaqnosis Only
MCL 333.16401(1) (b) (i)m as interpreted
by the Supreme
Court
in Beno, supra, does not include thermography of any type as a
diagnostic device for use by chiropractors.
333.16401
does not include "differentials
"Diagnosis" under MCL
diagnosis."
The Supreme
Court analyzed the statute in connection with the claim of the
45
t:>
~
defendant,
Beno, that he was examining
there was nerve interference.
the elbow
The Supreme
to determine
Court stated
if
in Beno:
While it is not directly established in the record, we are
indirectly led to believe from the testimony that the
existence of a spinal subluxation or misalignment cannot be
observed by examination of areas away from the spine that may
be experiencing the pain of nerve interference. Rather, the
existence of subluxations or misalignments of the spine can
only be observed where they exist. This reading of the record
is fortified by the defendant's own brief, where it is stated:
"[a]nd it is absolutely medically necessary to at times X-ray
other parts of the body, other" than the spine, if the
chiropractor is to accurately diagnose which of the
subluxations shown on X-ray is the cause of the patient's
complaint.
That may only be done by the elimination of
localized problems, such as fracture or bone abnormality."
Only bv the process of elimination of other possible maladies
(differential diaqnosis) can the chiropractor then advise the
patient that the pain in the elbow was caused
by the spinal
difficulty, which itself,can only be directly observed in the
spinal area.
,
It could be helpful for the patient to know the consequences
of his subluxation or misalignment, and it may influence the
desirability of chiropractic treatment. Presumably, it would
also have the chiropractor explain why spinal treatment will
not in given situations cure painful symptoms. Nevertheless,
to allow this kind of diaqnosis would require the chiropractor
to recoqnize other maladies that are possible in many other
parts of the anatomy and, in such case, lead the patient to
believe that a definitive di~nosis relating to those other
maladies that may be causing symptoms has been received. We
do not believe the Legislature intended to authorize such
diaqnostic techniques. Id at 312 (emphasis added).
During the course of the trial, this Court had the opportunity
to hear
degrees
testimony
from experts
of expertise
from various
and specialization.
fields
with
varying
It is clear to this Court
that what is involved in the use of thermography of any type is the
process of "differential
diagnosis
comes
diagnosis."
Basically,
into play when there is a possibility
differential
of multiple
causes of a similar phenomena and one must differentiate among
46
" ~
those
multiple
Vlasuk
[Potchen
causes.
XXVII, 62; Robertson
XXIX,
It is clear from the testimony
82;
XVIII,
DuVall
XXIV,
100;
55].
of the Plaintiffs
and their own
expert that thermography, of any type, is used for differential
The Plaintiffs introduced the American Chiropractic
diagnosis.
Association's
policy statement on thermography
of
acceptance
[Plaintiffs'
in
thermography
Exhibit 143].
the
as "indicative of the
chiropractic
profession.
Defendant introduced a subsequent and
revised ACA policy statement [Defendant's Exhibit 379].
Leaving aside for the moment the
thermography
is
nationally
recognized
question
in
the
of
whether
chiropractic
profession and meets the standards of the profession for the use
and operation of such diagnostic instrument, it is clear that
thermography is used for "differential diagnosis."
It is clear
from the plain reading of the policy statement itself, which was
written to be disseminated to the public for purposes of thirdarty reimbursement
[Vlasuk XXVI~,
96], that thermography was
esigned for purposes of differential diagnosis.
As stated in the
thermography:
"Thermography,as diagnostic aid, may be indicated when a
hysiologicalimaging test is needed for differential evidence of
kin temperaturedifferences. Such test results must be"properly
orrelated with a thorough history, an appropriate clinical
:xamination, and other diagnostic studies/tests as may be indicated
'y clinical necessity.
In this setting, diaqnostic thermoqraphy
av be an aid in establishinq a differentiated
diaqnosis and in
etermininq a proqnosis."
Emphasis added).
Vlasuk
[lXXVII,
testified
that
it was
53-54]".
47
for
differential
diagnosis
.
c
"
Although
Plaintiffs'
"differential
he went
expert, Dudley, indicated
diagnosis"
on to
testify
that the words
in Exhibit 379 are superfluous
under
cross-examination
that
[XII, 41],
the
process
involved in thermographic scanning is in effect "differential
diagnosis."
measures
basic testimony was that thermography
skin temperature
causes
other
dermatomes"
as
Dudley's
the depth of 2 rom., and that a number of
skin
influence
temperature
(which is an indication
infectious
processes,
vascular
other
than
to him of subluxation),
tumors,
disease,
[XII,
20].
such
hematomas,
or
scratches on the surface of the skin, fractures,
causes.
"faulty
emotional
He indicated that it is very difficult for a
...
professional to differentiate whether the dermatome is "at fault,"
or whether it is vascular disease.
[XII,
35].
He also indicated that a lot of professionals
are confused
that they think the patient. has a faulted dermatome,
they may have a vascular disease.
when
in
in fact
In that instance, he would not
treat a vascular disease, but woul~ refer the patient out.
[XII,
36].
He went on to indicate that the process of determining
a thermal
phlebitis
[XII,
whether
change was the result of a faulted dermatome or a
.or arthritis
"does include
differential
42]. Dudley also admitted that examination
diagnosis."
of the peripheral
vascular system with the use of thermography is a differential
diagnostic
process.
[XII,
49].
He also indicated that using
thermography to locate subluxations and to rule out or determine
if
arthritis:
is
present
is a differential
48
diagnostic
process.
c
<
~
[XII,
49].
The entire process
with
reference
that Dudley
described
using thermography
to the examination of the lateral thighs to
determine differences in temperature in the area supplied by the
lateral femoral cutaneous nerve was the process of differential
diagnosis.
[Potchen
in rebuttal
to Dr. Dudley,
XVIII,
39].
Dr. Potchen,
testified
that
who had been called
distinguishing
between
the effects of a subluxation and a peripheral nerve trap would be
the process of differential diagnosis absolutely.
He went on to
state that using thermography to examine the peripheral vascular
system and to determine whether a condition was vascular in nature
...
or the result of a subluxationwould be the "sine qua non" for
differential diagnosis.
[XVIII,
32].
Because you are trying to differentiate whether it's due to
a problem of the spine areas, where there are subluxations,
versus a problem of the vessel, and where there is
contribution to diminished profusion.
Peripheral
vascular
occlusion j.s treated very differently
from
the problems
of the spine,
and that differential
diagnosis
allows one to put the proper treatment to the patient's
problems. And it is an importantdistinction.
.
Therefore, even if thermography was a scientifically valid
diagnostic procedure, which will be discussed below, it would be
one of differential
diagnosis,
which is precluded
from MCL
333.16401, as interpreted by Beno, supra.
Furthermore, the Supreme Court in Beno, supra, analyzed the
meaning of "diagnosis" in respect to whether a chiropractor could
perform
a general
physical
strict interPretation
examination.
of the word
49
It concluded
'diagnosis'
that,
"A
is most in tune with
:;>
0
the
lawmaker's
intent. II Beno,
supra at 326.
Beno had argued he should be able to take urine samples,
samples,
blood pressure
and examine the heart,
lungs,
hair
eyes, ears,
nose and throat of his patients.
The purpose of these examinations was variously given as
determining
"abnormality
of
several
organ
dysfunctions"
to
"stabilizing low back ailments" to determine if it was required to
refer the patient to a medical doctor or to indicate whether the
patient should not undergo chiropractic care.
For
e"xample:
Appellant examined the investigator' s heart because he claimed
a spinal subluxation could possibly produce nerve interference
which in turn could produce a reaction in the heart. The
nerves that go to th~ hear, according to appellant's
testimony,come from the spinal column and thereby create the
possibilitythat an irritationwithin the spinal column could
affect the electricalimpulsesto the heart.
"
Beno, supra at 319.
The
Board
of
reviewed
Chiropractic
the
record
of
the
administrative law examiner concerning Beno's practices and found
,
The Board was
that urine analysis and hair analysis were useful.
also of the opinion that there was no reason why a chiropractor
could not use the sphygmomanometer,
depressor,
as long as the purpose
conditions
not amenable
324.
and
"is not to specifically
to chiropractic
care."
tongue
diagnose
Beno, supra,
323-
The board also found it appropriate for chiropractors to
gather data which
chiropractic
nature
stethoscope-
treatment
of nerve
the concept
could be used to determine whether
was
indicated,
interference.
of:differential
and if so, the specific
The Board was also
diagnosis
50
or not
in the sense
"supportive
that
of
it means
0
..
deciding
supra,
whether
or not chiropractic
care
is called
for."
Beno,
324.
The Supreme Court held that these conclusions
of the Board of
Chiropractic were "based essentially on the Board's willingness to
have the scope of chiropractic include differential diagnosis."
Beno, supra, 325.
The Supreme Court rejected
the invitation.
As expressed in the elbow issue, our assumption from the
record and the appellant's own arguments is that spinal
subluxations and misalignments can only be located at their
source, and that the effects of nerve interferenc~ in other
parts of the body can only be ascertained by the elimination
of other causes of the symptoms. We do not see anything in
the words of the chiropractic licensing statute "diagnosis...
to determine the existence of spinal subluxations or
misalignments that produce nerve interference" by the use of
physical examination or, collection and interpretation of
laboratory specimens.
Beno, supra,
The Supreme
325.
Court went on to conclude:
We find significant, as did the lower courts, the rejection
by the Legislature of the principle of differential diagnosis.
The rejection of this language along with the other previously
mentioned
considerations"
indicate
that
a
strict
interpretation of the word "diagnosis" is most in tune with
-the lawmaker's
Beno, supra,
intent.
326.
This Court concludes that, like the elbow X-ray and general
physical
examination
in a Beno, thermography does not locate
subluxations where they exist.
It is, therefore, useful only for
differential diagnosis. Also, which the fact that other states may
allow thermography is not dispositive, since other states have
broader enabling statutes and have not enunciated the public policy
of strictly
co?struing
the chiropractic
51
statute
in favor of the
" c
protection
of the health,
safety and welfare of the people
of the
state of Michigan.
ThermoqraphY is not ScientificallY Valid to Monitor
Physioloqy to Determine Subluxations or Misaliqnments
Testimony was received from five experts from various fields,
including
three
that
chiropractor,
was
thermography
not
a
scientifically valid procedure in detecting subluxations or other
musculoskeletal problems.
The most
M.D.
eloquent
witness
Dr. Pot chen. holds
in that regard
was E. James
Potchen,
not only a medical and a law degree,
is board certified in radiolo~,
as well as nuclear medicine.
but
He
has served as chairman of the FDA committee on the efficacy of
diagnostic. tests;
Massachusetts
and specifically
obtained a masters
degree
from
Institute of Technology to learn what would be
necessary to establish the validity of diagnostics as valid in
medicine.
[VIII,
In addition,
"
8].
Dr. Potchen has served as chairman of the Liaison
Committee on Medical Education, which accredits all American and
Canadian medical schools, and has also served as liaison to the
Board of Medical
Specialties.
His special interest
is diagnostic
decision analysis, which is the process of appraising the efficacy
of diagnostic testing, which includes the entire spectrum of
imaging modalities.
[VIII,
10].
In addition to presently serving as professor of physiology
at
Michigan
.Si;ate University
School
52
of
Medicine,
his
special
t
~
research
area is in microvascular
since thermographic
of
regional
heat
systems and the spine and brain.
imaging tools are designed to.d~pict the image
emission
by
conduction
or
infrared
radiation
[VIII, 16], the field of microvascular research is particularly
applicable to the diagnostic efficacy of thermography.
Al though
potchen is not an expert on the practice of
Dr.
chiropractic, he does consider himself an expert on the spine and
subluxations of the spine.
He initially became
[VIII, 27].
involved in thermography as an alternative to ionizing radiation
.in .1963 with
regard
to musculoskeletal
conditions
[VIII, 37] and
understands that thermography is purported to be a diagnostic tool
..
..
in relationship to the spine and subluxations of the spine,
supposedly providing an index of increased or decreased heat in
areas where the spine is abnormal or in radicular manifestations
of the abnormalities of the spine.
He
that
understands
it
is
[VIII,38].
alleged that there is
an
,
interference manifested in a number of physiologic and clinical
events which alter the temperature emissions from portions of the
body, and indicates that there are four questions which need to be
answered
in
order
first, whether
to determine the efficacy of thermography:
thermography
measures
a" physiologic
event
that
is
disrupted by the alleged pathology; second, whether or not one
knows the physiologic
basis, is there clinical correlation, in
other words, does it provide any useful information; third, whether
there is any relationship between the information collected and any
"
"gold standard,"
such
as
exists with a
53
CT
scan
or
magnetic
0
~
resonance image; and fourth, whether the degree of asymmetry
which
has been the dominant ascription of proponents is different in
people who have no symptoms.
39-41].
[VIII,
Dr. Potchen's opinion was as follows [VIII, 45]:
Specifically, in evaluating disorders of the spine and
specifically
in
evaluating
subluxations,
it
[thermography] is absolutely no utility whatsoever. All
efforts to document it through any scientific efficacy
research have not been successful.
And indeed it approaches a random measurement. Ithink
the use of thermography, at least as my experience,
there is no reputable physician in this state who uses
it in the care of their patients despite the fact tha~
it is available.
Dr. Potchen went on to indicate that thermography has no utility
in diagnosing
nervous
"
system'disorders
in diagnosing nerve interference.
relating
[VIII,
48].
to the spine
nor
Thermography has
no efficacy in diagnosing the various definitions of subluxation
given by Dr. Herfert
and Dr. Hofmann.
[VIII,
48-50].
It also has
no efficacy in diagnosing where a particular nerve or group of
nerves is not functioning.
Basically,
of
efficiency
differences
,
[VIII, 51].
Dr. Potchen explained that the reason for this lack
is that because thermography measures regional
in heat which are caused by variations
in the
microvascular blood supply, and because these various skin vascular
beds open and close almost randomly in an effort to release heat,
efforts to
find correlations with neural regulation
microvascular circulation have been unsuccessful.
This court also heard testimony
Sperl is board certified
from Michael
in physical medicine
54
[VIII,
Sperl,
of the
51-53].
M.D.
Dr.
and rehabilitation,
6
.
~
and
holds
a
specialty
in
[XXXI,
electromyography.
In
134].
Dr. Sperl was certified in thermography through the
addition,
,
course given by Dr. Wexler
Dr.
Sperl
[XXXI,
in 1984.
he
that
testified
141].
to
attempted
the
determine
efficacy of thermography by comparing thermographic results with
known problems which were demonstrated by CT scans or EMG findings.
It was Dr. Sperl's opinion that he did not find thermography to be
diagnostically or therapeutically helpful.
also
Dr.
Sperl's
opinion
that
[XXXI,
thermography
It was
158].
did
not
aid
in
.monitoring the body's physiology for determining the existence or
location of subluxation.
[XXXI,
159].
"
In light of the Supreme ~ourt's decision in Beno, supra, this
Court
finds
that
Dr. Potchen
and Dr. Sperl
are more
comprehensively
trained and licensed as medical doctors than chiropractors,
and" in
keeping with public protection to have the broader discipline
making diagnostic
specialties
observations
of the narrower
about those things within the
,
discipline,"
Beno,
supra,
312,
this
Court concludes that thermography is not a scientifically valid
diagnostic
instrument
for
locating
subluxations
o.f the
spinal
vertebrae.
Thermoscribe NCM, Dermathermoqraph are Less Reliable
Than Infrared or Liquid Crystal Thermoqraphv
The "hand held" heat sensing devices are not within the scope
of practice
of chiropractic
for the following
55
reasons.
,
a
i'
Although
the
of
there has been testimony that they are the grandaddy
present
thermography
technology
[Vlasuk
XXVII,
and
[Herfert]
76] plaintiffs
forms
primitive
own expert,
Dudley,
not use them because they are unreliable [XII, 91].
recommends
There
statement
in his seminars
is no affirmation
[Defendant's
50]" and tend
there
that they not be used
to lose
of their efficacy
Exhibit 379].
calibration
does
Dudley
[X, 125].
in the ACA Policy
They are less sensitive
more
rapidly
of
While
[X, 126].
to
is testimony they are similar, theoretically,
[X,
other
.methods of thermography, they are unable to scan the entire body,
or large areas necessary to locate the "faulted dermatomes" which
...
Dudley testified
Therefore,
was necessa~
although
to locate subluxations
they are considered,
[XXI, 33].
theoretically,
the same
as infrared liquid crystal, they are impossible to use for that
task [Dudley XXI, 33; Clum XI, 102].
If it should be suggested that the "hand held" devices are
effective
because
they
are used
,
proximal
to the
spine,
the
record
indicates that, like infrared and liquid crystal, they are heatsensing devices and do not locate subluxations. The ~act that they
are not used by the medical profession [XIX, 41] is indicative that
they are not valid diagnostic devices, either in the common domain,
in chiropractic [XXIX, 50] or for differential diagnosis.
This Court finds that Plaintiffs have not established by a
preponderance of evidence that such devices are even useful as
analytical
body's
instruments
physioiogy
and concludes that they do not monitor
for the purposes of determining
56
subluxations
the
in
a
,
OJ
~
and of themselves,
50]
[XXXI, 79-82; XXI, 31; XV, 10; XVII, 45-46, 47-
and are less effective models of the infrared and liquid
crystal with the same theoretical
This is confirmed
limitations.
by Vlasuk, who does not use them and was never taught them in
chiropractic
he could
college
not
differentials
[XXVII,
be confident
75], and by Dudley,
in scanning
to locate subluxations
who testified
first the
that
spine. for heat
[Dudley, XXI, 31].
The NCM, DTG and thermoscribe, although used
(and perhaps
abused) for many years, have not been shown to be analytical
This is
instruments within the scope of practice in Michigan.
based on the testimony of plaintiffs and their own experts with
vested financial
testimony
interests.
,
'
When
of Drs. DuVall, Robertson
this
considers
Court
and Fr~as, it is left without
a doubt that such devices serve no purpose in locating
of the vertebrae of the spine.
the
According
to Dr.
results can be altered by mere pressure when used
subluxations
DuVall,
[XXIV, 40].
their
Dr.
...
Robertson,
although
instructed
in their
use
at
Palmer,
their use when not required by the school or an employer
41].
apandoned
[XXIX, 40-
He testified they are of no value whatsoever:in detecting
subluxations
[XXIX, 50-57].
Even if thermography'was scientificallyvalid within the
medical profession, it does not meet nationally accepted standards
of the chiropractic profession for the diagnosis of subluxations.
This is clear from the reluctance of the American Chiropractic
Association
to
state
'chiropractic .profession,
that thermography
and to indicate
57
"is"
only
germane
that
it
to
"may
the
be"
.
,
"
[XX,
germane.
[XXVI I,
46].
change from "is"
The
sense
17]
of
the
words
to
of
"may be"
a
is
statement
indicative
of
in the
to
fact
one
common
of
mere
possibility.
As
testified
chiropractor,
of
the
board
American
chiropractic
the ACA policy
"may be"
germane
they
are
to
not
it
for
the
purpose
of locating
is
not
taught
in
chiropractic
radiology,
Association's
Council
the
indicating
chiropractic
saying
is
college.
definitely
,
'curriculum,
[XXIV,
that
profession
subluxations.
core
and
Michigan
in diagnostic
statement
the
a
Freas,
certified
Imaging,
.that
Dr.
by
43].
and a member
on Diagnostic
thermography
indicates
a diagnostic
is
only
to
him
instrument
Thermography
[XX, 17].
as
Florida
X-ray,
in
every
It is also clear that the
chiropractic profession has no national standards for diagnostic
instruments.
addition,
[Marderosian
there is a
XXI,
raging
13; Robertson
dispute
among
51].
In
members of
the
XXIX,
,
chiropractic
profession
diagnosing subluxations.
whether thermography has utility in
[DuVall XXIV, 42; Freas
XIX,
104-106;
Robertson XXIX, 57-58].
Dudley states that in order to be within the scientific
method,
results
that DTG and
have to be repeatable
thermo
[X, 130] yet Hofmann
scribe tests are not repeatable.
[XV,
states
24-25].
Furthermore, based upon the Plaintiffs' own expert's criteria
for national acceptance, thermography has not met the test of time.
[Clum XI, 93].
accepted
It is clear that if thermography was a nationally
standard
of practice
for the chiropractic
58
profession,
it
, "
would
be taught
curriculum
in
every
[Clum XI, 108,
are different
[V,
18-21;
at the
chiropractic
level
as part
college,
as
of
J:C-~ay is
the core
taught.
Even among the chiropractic profession,
145].
"theories"
VI,
undergraduate
60 ;
XV,
on how to interpret
141-142;
XXIV,
thermographic
there
results.
These theories of
15].
"pattern" and "break" are indicative of a lack of uniformity and
st~ndardization of thermography within the chiropractic profession
itself, and leads the Court to believe that there is, in fact, no
nationally accepted standard for this diagnostic technique within
.the chiropractic
profession.
...
...
Financial
financial
Dudley and Dr. Vlasuk all demonstrate a
Dr.
Plaintiffs,
interest
Self-Interest
in the process of thermography, which is
indicative of a bias which colors their testimony.
This is particularly evident in the testimony of Dr. Dudley,
who has used and billed
46].
,
for thermography
[IX,
since 1970 or 1971.
He did this in spite of the fact that he did not take his
35,.. 48].
He has
repeatedly given seminars on behalf of salespersons
for the
first course in thermography until 1976.
of thermographic
manufacturers
advertisements
sponsoring
his
equipment,
seminars.
[IX,
who have purchased
[X,
88].
He
is
financially interested in thermography and earns a portion of his
living
from
thermographic
.
[X, 62, 86,
teaching
scans
118).
thermography,
as
well
as
performing
for his patients and for litigation
He indicates that he charges $450.00
59
purposes.
for
a
".I
c
.,
thermographic
on eight
scan of the full body, and he performs
out, of 10 of his
had his own personal
dependent
suit
on the outcome
Dr. Vlasuk,
[X, 52].
for charges
In addition,
for thermography
of this lawsuit.
who testified
also derives a substantial
[XVII,
patients.
thermography
[XII,
as Plaintiffs'
Dudley
which
was
4].
"rebuttal
expert",
portion of her income form thermography.
As indicated above, the purpose of her drafting the
77-81].
policy statement of the American Chiropractic Association on
thermography (which is the only such policy statement ever drafted
.by the ACA) was to obtain third-party reimbursement.
the
Obviously,
Plaintiffs
themselves
stand to
gain
a
....
substantial amount i~ thermography is found to be within MCL
333.16401.
Dr. Hofmann,
$550 for a full body scan
to seven thermography
for example,
that
he charges
[V, 52] and that he performs
up to five
studies per week.
testified
[V, 96].
Although
Hofmann
does a full thermogram in only three to four cases per month, as
of April 1989, he was doing 25-3b thermograms per month.
[VII,
24].
Dr. Herfert, by the same token, uses a thermoscribe,
a cost of between
$1,600 to $2,000 for the equipment.
which has
[XIV,
115].
For a thermoscribe, which be uses frequently, he charges $15.
[XIV, 115].
For instance, on one patient, Toshika stamper, Herfert
admi tted performing
for one patient,
approximately
machine.
59 thermoscribes.
he charged
50 percent
[XIV,
the Auto
of the
In other words,
[XIV,
118].
Club
Insurance
cost of the entire
120].
60
Association
thermoscribe
,
.
These thermo
in
chiropractic
assistants
scribes are taken not only by the doctors of
Herfert's
office,
and X-rays assistants.
but
[XIV,
also
by
chiropractic
In the case of the
120].
patient, stamper, although Herfert charged approximately
thermoscribe,
$1,000 for
he denied that the charge was excessive,
xv, 5] even
though all of her thermoscribe print-outs were different, which
indicated that she was healthy.
[XV,
10].
Furthermore he never utilized the thermoscribe results to
alter his diagnosis and/or treatment contrary to the purported
.reason for thermography
approach
is
given
demonstrated
by Vlasuk.
by
Dr.
[XXVII,
64-66].
billed
who
Hofmann,
The same
for
"-
[V, 96-97].
thermography without any effect on case management.
Dr. Hofmann testified' that X-rays are always taken on the
first or second visit in virtually all cases [85% Hofmann, III,
135] and X-rays are the primary diagnostic tool for Hofmann.
[V,
53].
"'-
Despite the purported
importance of a consistent
ACA position paper on thermography,
used by Herfert
[see
Exhibit 379], the only protocol
and Dudley for their patients
off their clothes.
protocol
is to have them take
[Herfert XV, 16; Dudley XII, 72, 79].
Although
Dudley indicated that he was being facetious, he had made the same
statement Under oath during his deposition in a malpractice case
filed
against
him.
(X, 118-121].
That lack of protocol is in
keeping with Dr. Dudley's opinion that the only indication for
conducting
During'
a thermography
discovery
,
is that the person be alive.
this
Court ordered
61
a
random
[X, 52].
audit
of
<
0:>
0
Plaintiffs'
Court
files pertaining
finds these
files
patient population.
thermography
insured
to be representative
[V, 105], the randomly selected
used
testified he
cases
ten out of one hundred patients
The
patients.
of the Plaintiffs'
Dr. Hofmann
Although
in 20 out of 100 non-insured
approximately
thermography
to non-ACTA
[V, 101], and that
receive a full body
files show that there
are only two "spot" thermograms done at approximately $50.00
each.
This is indicative of not only the selection of insurance cases for
thermography [see Plaintiff Exhibit 155] but also of the lack of
.any.clinical
need to perform
The only indication for
thermography.
the use of thermography demonstrated by the audit is the existence
...
....
of insurance to pay for it.
Based upon
the
[XIII,
financial
95].
interests
of Plaintiffs
and their
experts, I find that where there is a direct conflict between their
testimony
and the testimony
of. the experts
called
by Defendant,
the
Defendant's experts hold greater credibility, and their testimony
...
has accordingly been given greater weight.
In conclusion, this Court finds that thermography as a means
of heat detection applied to human physiology does:not diagnose
subluxated or misaligned vertebrae or related bones and tissue.
There are a variety of thermographic
do not
:in
subluxations
devices
finds
and
of
exist.
are for only
that
locate subluxations
themselves,
where
the
Even if scientifically valid, thermographic
~seful
thermographic
.particularly.with
devices, which, unlike X-rays,
respect
differential
devices
are
to monitoring
62
diagnosis.
not
This
scientifically
the body's
Court
valid,
physiology
to
.
.
detect
meets
subluxation.
nationally
accepted
Plaintiffs'
$4,586.00
from
Nor does this
claim
standards
Court
find that thermography
of the chiropr~c.tic
is therefore
denied.
ACIA
profession.
is entitled
to
Hofmann and $4,340.00 from Dr. Herfert for
Dr.
monies previously paid for thermography
(See Exhibits
429 & 430).
SCOPE DAMAGES
The Court will permit the partaies to develop an order for the
Court's approval covering the total amount of damages to be
.assessed in accordance with this opinion.
...
...
ACIA'S
Another
area
of
COUNTERCLAIM
controversy
section 3157 of the No
involves
the
application
of
Fault Statute upon the facts and
circumstances in this case.
section 3157 of the Michigan No-Fault Statute
provides:
,
"A physician, hospital, clinic or other person
or institution lawfully rendering treatment to
an injured person for an accidental bodily
injury covered by
personal protection
insurance, and a person or institution
providingrehabilitativeoccupationaltraining
following the injury,may charge a reasonable
amount for the products, services and
accommodationsrendered. The charge shall not
exceed the amount the person or institution
customarily charges for like products,
services and accommodations in cases not
involving
MCLA
500.3157;
The leading
(1984).
insurance."
MSA 24.13157.
case on Section 3157 is Dean V ACIA, 139 Mich 266
In Dean,
the plaintiffs
63
(as are the plaintiffs
in this