Published 6/1/2008

Judges boot podiatrists’ definition of foot

A Texas court of appeals has ruled for the Texas Orthopaedic Association/Texas Medical Association (TOA/TMA) and against the Texas State Board of Podiatric Medical Examiners (podiatry board) because the podiatry board improperly implemented a new rule that expanded the practice of podiatry. The court of appeals concluded “that the [podiatry] board exceeded its authority when it promulgated the rule and that the rule is invalid.” The court of appeals then remanded the case back to the district court in Austin.

The lawsuit began in 2000 when the podiatry board implemented the rule defining 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.”

When the rule was implemented, the TOA/TMA objected. So did then-Attorney General John Cornyn, who 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 healthcare practitioners.

Nevertheless, in August 2005, the district court upheld the rule and the TOA/TMA appealed the decision to the court of appeals.

The court of appeals reversed the district court and invalidated the rule by stating that “because there is no language limiting the permissible area of treatment for these soft tissues, the rule authorizes podiatrist to treat these anatomical features wherever they may be located in the body.” The court of appeals found this to be unacceptable because the “rule authorizes podiatrists to treat parts of the body outside the traditional scope of podiatry...[which] exceeds the limited exemption given to podiatrists and would constitute the unauthorized practice of medicine.”

TOA/TMA anticipates the podiatry board and Texas Podiatric Medical Association, which intervened in the case, will likely ask for a rehearing of the decision and/or appeal to the Texas Supreme Court.