Administrative – Administrative Procedure Act – Agency Jurisdiction

The superior court did not err when it affirmed the North Carolina Board of Chiropractic Examiners’ decision to suspend Petitioner’s Doctor of Chiropractic license.

We affirmed the superior court’s order affirming the Board’s amended final decision.

This case arose from two complaints submitted to the North Carolina Board of Chiropractic Examiners alleging that Petitioner, a licensed chiropractor, violated the North Carolina General Statutes regulating chiropractic care. Petitioner appealed from the superior court’s order affirming the Board’s decision to suspend her Doctor of Chiropractic license for six months and, upon reinstatement, place her on two years of probation with conditions.

Among other things, Petitioner maintained the superior court erred “when it failed to overturn the Board’s decision” that she was negligent. Specifically, Petitioner directed her argument at the Board’s conclusion of law, in which the Board determined Petitioner “failed to secure appropriate care for” patient S.B. Petitioner alleged the Board exceeded its “jurisdiction and regulatory authority” because this conclusion “does not relate to the practice of Chiropractic.” However, we did not need to consider the legal issue of whether the Board’s jurisdiction extends to disciplining licensees for practice beyond the scope of chiropractic care—such as Petitioner’s apparent practices here—because both the superior court and the Board also made unchallenged findings of fact and conclusions of law concerning Petitioner’s negligence within the scope of the practice of chiropractic.

On judicial review of the Board’s conclusion, the superior court found as fact that the Board’s conclusion of law was “supported by the findings that [Petitioner] failed to keep adequate clinical notes or records and failed to perform proper examinations of the patient” and, therefore, “was supported by the evidence in the record, testimony at [the] hearing, findings of fact, and pertinent law.” The superior court correctly concluded that the Board did not exceed its jurisdictional authority by disciplining Petitioner for her negligence in the practice of chiropractic. We overruled Petitioner’s challenge.

Similarly, Petitioner contended the superior court erred by concluding “[t]he Board properly determined [Petitioner] failed to render acceptable care in the practice of chiropractic.” Petitioner alleged “the Board is holding [her] to a standard of care which is not within the practice of chiropractic and beyond the scope of the Board’s power of regulation” and asserts that it is “outrageous that a chiropractor should be required to step in and take over for a medical prenatal provider when the chiropractor finds that the provider is no longer tending to the pregnant patient.” However, as with her challenge to the negligence issue, Petitioner overread the Board’s conclusion. The Board did not discipline Petitioner because she failed to provide “medical prenatal” care; rather, the Board disciplined Petitioner because she failed to render acceptable chiropractic care. Consequently, Petitioner’s contention that the superior court erred by failing to overturn the Board’s conclusion of law also failed.

Petitioner next challenged the superior court’s conclusion that “[t]he Board did not abuse its discretion in imposing probationary terms in . . . paragraph 6 [of the decretal section of the amended final decision] based on the evidence presented at the contested case and in light of the entire record.” Petitioner contended that this informed-consent condition “is beyond the proper regulation and supervision of the practice of chiropractic[.]” However, we have previously recognized that “[t]he discipline imposed upon chiropractors is consigned to the discretion of the Board. In exercising this discretion, the Board may consider evidence concerning a chiropractor’s truthfulness and character. Indeed, honesty and good moral character are prevalent themes in the North Carolina Chiropractic Act.” Here, the Board found Petitioner had committed unethical conduct “by publicly describing herself as a chiropractor ‘who specializes in maternal and pediatric care[,’] when she does not have the qualifications” for such specialization. The challenged informed-consent requirement relates directly to the grounds for discipline and is properly within “the discretion of the Board.”

Finally, Petitioner argued the informed-consent requirement “violates the patient’s freedom of choice in selecting chiropractic care” as guaranteed by N.C. Gen. Stat. §90-157.1. However, the Board persuasively observes it is not a “board administering relief” under §90-157.1, and it does not “deny [to any] recipients or beneficiaries of [its] aid or services the freedom to choose a [duly] licensed chiropractor” when it imposes a condition of reinstatement upon Petitioner’s license. Nothing about the required informed-consent language denies any “patient’s freedom of choice”—either as initially provided by Greenway or as revised by the Board. Therefore, we overruled Petitioner’s argument.

Affirmed.

Federowicz v. North Carolina Board of Chiropractic Examiners (Lawyers’ Weekly No. 011-212-24, 20 pp.) (Valerie Zachary, J.) Appealed from Wake County Superior Court (G. Bryan Collins, Jr., J.) Vinson Law PLLC, by Robin K. Vinson, for petitioner-appellant; Hedrick Gardner Kincheloe & Garofalo, LLP, by A. Grant Simpkins and Anna Baird Choi, for respondent-appellee. North Carolina Court of Appeals