Teston v. Arkansas State Board of Chiropractic Examiners

Jim Hannah, Chief Justice,

concurring. I concur with the result reached by the majority, but I write to express my concern that this case was not referred to the Arkansas State Board of Physical Therapy for review of Teston’s treatments administered to Fryar and Hendrix. In this case, the Chiropractic Board found that Teston practiced chiropractic without a license. In an order entered prior to the Chiropractic Board’s hearing, the Physical Therapy Board concluded that Teston provided treatment within the scope of the practice of physical therapy.

Where there is a dispute between two licensing boards with regard to the same conduct, both boards are necessary parties. See Arkansas State Med. Bd. v. Schoen, 338 Ark. 762, 1 S.W.3d 430 (1999); Arkansas State Med. Bd. v. Bolding, 324 Ark. 238, 920 S.W.2d 825 (1996). Subsequent to its determination that Teston had engaged in the unauthorized practice of chiropractic, the Chiropractic Board should have referred the matter to the Physical Therapy Board for review of Teston’s actions. Then, if not satisfied with the Physical Therapy Board’s conclusion, the Chiropractic Board could have filed an action in circuit court naming Teston and the Physical Therapy Board as necessary parties.

In Bolding, supra, the Medical Board sued a dentist and a hospital where the dentist performed surgery, alleging that the dentist was engaged in the unauthorized practice of medicine. The trial court granted summary judgment in favor of the dentist and the hospital on the grounds that the dentist was practicing dentistry under the authority granted to him by the Dental Board. The trial court reasoned that it could not grant the relief requested by the Medical Board without exposing the dentist to inconsistent determinations by two different state agencies. On appeal, we held that the trial court erred in granting summary judgment because the Dental Board should have been joined as a necessary party. We stated:

It is obvious there exists a disagreement between the Medical Board and the Dental Board as to where the practice of dentistry stops and the practice of medicine commences. It is a significant question and one which should only be addressed upon a fully developed record with all the necessary parties before the court.

Bolding, 324 Ark. at 245, 920 S.W.2d at 829.

In Schoen, supra, the Medical Board sued a dentist and the Dental Board, alleging that the dentist, with the aid of the Dental Board, was engaged in the unauthorized practice of medicine by performing certain procedures, including the removal of a basal cell carcinoma from the forehead of a patient. The chancery court dismissed the action on the ground that the Medical Board had an adequate remedy at law in an administrative proceeding before the Dental Board. We reversed, stating that because the Dental Board had taken the position that the removal of the carcinoma was the practice of dentistry, it could not “posture itself as an objective and impartial tribunal.” Schoen, 338 Ark. at 767, 1 S.W.3d at 433-34. Further, we noted:

We are aware that any decision by the Dental Board would be subject to review in circuit court. But judicial review of an administrative appeal is limited. We conclude that under these circumstances the administrative remedy is inadequate and chancery court should retain jurisdiction pursuant to its authority under § 17-95-402(b) and (c).

Id.; 1 S.W.3d at 434 (citations omitted).

In Schoen, we concluded that it was “eminently preferable to have the legal and factual issues thrashed out in chancery court with the full participation of the Dental Board and the Medical Board.” Id. at 768, 1 S.W.3d at 434. Likewise, in the instant case, it would have been preferable to have the legal and factual issues thrashed out in circuit court with the full participation of the Chiropractic Board and the Physical Therapy Board. In fairness to Teston, the Physical Therapy Board should have been joined as a party to the action. Nevertheless, I agree that this case must be affirmed because Teston failed to raise the argument that the Physical Therapy Board should have been joined as a necessary party.