An Austin appeals court sided with Texas Orthopaedic Association (TOA) and TMA and said the Texas State Board of Podiatric Medical Examiners was wrong when it adopted a rule that expanded the definition of the foot to include the bones in the ankle.

"We conclude that the board exceeded its authority when it promulgated the rule and that the rule is invalid," the judges on the Texas Court of Appeals, Third District, said in upholding medicine's appeal of a lower court ruling. The judges sent the case back to an Austin state district court that had ruled in favor of the podiatrists.

The legal battle began in 2000 when the podiatry board defined the foot as "the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes."

TOA and TMA objected. So did then-Atty. Gen. John Cornyn when he issued an opinion that said the podiatry board acted outside its authority. He added that only Texas Legislature, not an unelected administrative board, can establish or change the scope of practice for podiatrists, physicians, or any other health care practitioner.

In August 2005, an Austin district judge, issued an order in favor of the podiatrists. TOA and TMA appealed.

"Although there was extensive testimony and evidence presented during trial showing that treating the ankle was within the scope of podiatry, no evidence was introduced showing that treating structures found within the leg were within the scope of podiatry," the appeals court said in its March 14 decision.

The court also held that the "rule authorizes podiatrists to treat parts of the body outside the traditional scope of podiatry without satisfying the requirements of the Medical Practice Act. This authorization exceeds the limited exemption given to podiatrists and would constitute the unauthorized practice of medicine."

TMA expects anticipate the podiatry board and podiatry association to ask for a rehearing of the case and, if unsuccessful, appeal to the Texas Supreme Court.

###

In the past, TOA has fielded questions regarding the case of TOA/TMA v. TSBPME/TPMA by sending you the Attorney General’s Opinion which stated the podiatry board acted outside its authority.   If any of our members wish to forward the Third Court of Appeals Opinion to their hospitals, ASCs, or outpatient facilities, this Opinion may answer many questions regarding whether podiatrists will be allowed to do surgery on the ankle or above.  It could be that hospitals, ASCs, or outpatient facilities are placing themselves at risk for medical liability. 

The ruling of the Third Court of Appeals is important to healthcare providers and to hospitals.  We recommend you make your hospital, ASCs, and other facilities aware of the ruling so they can get their lawyers’ opinion regarding the Third Court of Appeals decision.