Texas Court Expands Scope of Practice for Texas Podiatrists
By Bhavani S. Reddy, J.D., M.P.H., LL.M. Candidate
This past summer, the 345th Texas Judicial District Court upheld the position that the
ankle is within the scope of practice for podiatrists practicing in the State of Texas.1
Travis County District Judge Darlene Byrne agreed with the Texas State Board of
Podiatric Medical Examiners (TSBPME) that its definition of “foot” as including the
ankle was valid.2 The decision resulted from a lawsuit filed by the Texas Orthopedic
Association (TOA) and Texas Medical Association (TMA) against the TSBPME,
challenging the latter’s defining the foot to include the ankle.
The court ruling temporarily ends a four-year controversy that revolved around a
purported expansion of the practice scope of podiatrists who perform surgical procedures.
On January 17, 2001, the TSBPME adopted an administrative rule defining the statutory
term “foot” to include the ankle. Specifically, the TSBPME defined “foot” to include:
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 the bones to the toes.3
Many Texas medical physicians objected to the TSBPME’s administrative definition of
the statutory term “foot,” arguing that the TSBPME’s definition is anatomically incorrect
and inconsistent with common understanding. They further complained that it was
beyond TSBPME’s legal authority to expand the practice of podiatry.4 Opponents of the
expanded definition, namely orthopedists and physicians, also claimed that the inclusion
of the bones of the ankle within the proposed TSBPME definition unilaterally redefined
the statutory term “podiatry” as it is employed in Section 202.001 of the Texas
Occupations Code and Section 151.052(a)(5) of the Texas Medical Practice Act.
Following the release of the expanded definition in 2001, former Texas Attorney General
John Cornyn issued an opinion stating that the podiatry board had acted outside its scope
of authority when it redefined podiatrists’ scope of practice.5
The TOA and TMA sought a judicial declaration that the lawful practice of podiatry in
Texas is limited to treatment of the human foot and that it does not extend to treatment of
the ankle bones or any other anatomical structure as a matter of law. In their original
petition, the TOA and TMA stated that the TSBPME’s expanded definition extended the
practice of podiatry beyond its statutory limits and into the practice of medicine as
1
Karen Edwards, Texas Court Rules Podiatry Scope of Practice Includes Ankle, at
http://www.podiatryonline.com/main.cfm?searched=/careers/pro_development/Texasdecision.cfm (last
visited Dec. 5, 2006).
2
Id.
3
TEX. OCC. CODE ANN. § 202.001.
4
Edwards, supra note 1..
5
Myrle Croasdale, Texas Podiatrists win case to expand scope of practice, 48 AMERICAN MEDICAL NEWS
24 (Oct. 10, 2005).
regulated by the Texas Medical Practice Act. As such, the TOA and TMA asserted that
podiatrists have no statutory right to engage in the practice of medicine and that allowing
podiatrists to do so undermines the Medical Practice Act. The TOA and TMA further
argued that only the Texas legislature, and not an unelected administrative body such as
the TSBPME, has the authority to establish or change the scope of practice for
podiatrists, physicians or any health care professionals.6 Furthermore, the TOA and
TMA claimed that to uphold the TSBPME’s expanded definition would grant podiatrists
– who are neither licensed nor trained to practice medicine – the right to perform
procedures, including ankle surgery, that would otherwise constitute the practice of
medicine.
Supporting the August 2005 opinion, the Texas Podiatric Medical Association and the
TSBPME stated that the 2001 revised definition of “foot” does not expand but rather
clarifies the original intent of the 1923 Texas Legislature, which first defined the
podiatric scope of practice, because the new definition merely reflects existing podiatry
training and longstanding standard podiatric practices that already include both foot and
ankle surgery.7
Podiatry or podiatric medicine in general is concerned with the exclusive diagnosis and
treatment of diseases and disorders of the human foot by surgical and non-surgical
means.8 The Texas Occupations Code defines podiatry as “the treatment of or offer to
treat any disease, disorder, physical injury deformity, or ailment of the human foot by any
system or method.”9 Podiatric medicine is practiced by Doctors of Podiatric Medicine
(D.P.M.), called podiatrists or podiatric physicians in certain States. Podiatrists are often
confused with orthopedists in that they may perform parallel diagnostic and procedural
functions to the foot. The two professions are, however, distinguishable. Orthopedics or
orthopedic medicine is a branch of medicine that is practiced by orthopedists.
Orthopedists are medical or osteopathic doctors (M.D. or D.O., respectively) who have
received general training in diagnosing and treating injuries and disease of the bones,
joints and skeletal deformities of the entire body, including those of the foot.10 Texas
licensed physicians and orthopedists must comply with the requirements and regulations
of the Texas Medical Practice Act.11 The Texas Medical Practice Act does not apply to
licensed podiatrists who are strictly engaged in the practice of podiatry as defined by
law.12
The TOA and TMA have announced that they will appeal the decision in favor of the
TSBPME.
December 2005
6
Id.
Edwards, supra note 1.
8
Daniel Penofsky, Podiatric Malpractice Litigation, 85 AM. JUR. TRIALS 189.
9
TEX. OCC. CODE ANN. § 202.001(a)(4).
10
Id.
11
TEX. OCC. CODE ANN. § 151.001-165.160.
12
Id.
7
2