STATE OF MICHIGANIN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

JOHN HOFMANN,D.C. andRICHARD HERFERT, D.C. ,

Plaintiffs andcounter-Defendants, Case No. 85-500355 CZ

Hon. Kaye Tertzagvs.

..AUTO CLUB INSURANCEASSOCIATfoN,a foreign corporation,

Defendant andCounter-Plaintiff.

/

OPINION

At a session of the said Court, heldin the city-County Building, cityof Detroit, County of Wayne, Stateof Michigan on August 29, 1990.

PRESENT: HONORABLE KAYE TERTZAG, CIRCUIT JUDGE

Below is the portion of an 86-page opinion in whichthe judge ruled that the chiropractic plaintiffs were notentitled to insurance payments for thermography scans.

torte,

THERMOGRAPHY

The Court has heard testimony from experts from various fieldsconcerning thermography. Testimony was received from the twoPlaintiffs, Plaintiffs' expert, William Dudley, D.C., as well asSusan. Vlasuk, D.C., who was called as a rebuttal witness for thePlaintiffs. The Defendant presented the testimony of two medicaldoctors, E. James Potchen, M.D., and Michael Sperl, M.D. Defendantalso present~d:the testimony of two doctors of chiropractic, JamesFreas, D.C. and Charles DuVall, D.C. Defendant also presented the

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testimony of J. Alan Robertson, M.D., D.C., who is licensed as amedical doctor and a doctor of chiropractic.

Thermoqraphv Devices DefinedThere are a variety of thermographic devices. All

thermographic devices measure heat emitted from an object. Heatis transferred by several physical means known as convection,conduction and infrared radiation. [XVIII, 47] . Testimonycentered primarily around three basic types of thermographicdevices: electronic infrared, liquid crystal and thermoscribe.Thermoscribe is similar in nature to a number of other "hand-held"devices described as a dermathermograph, NCM and neurocalograph.Although the various thermographic devices vary in sensitivity [V,42; X, 50], all measure heat and are theoretically similar.[Hofmann V, 13; C1um XI, 23; Dudley XII, 33; Potchen XVIII, 48-49;Herfert XVI, 143, 145].

There is a difference between thermography in the form ofinfrared and liquid crystal, which are able to measure largesurface areas of the body, and to the thermoscribe;dermathermograph and neuroca1ograph-type instruments, which arelimited to measuring the temperature on both sides of the spine.[Dudley XII, 31, 33; Clum XI, 102].

In addition to differenc~s in the area of the skin which canbe measured, the devices also vary in seHsitivity with infraredthermography being the most sensitive. [Dudley X, 50; Hofmann V,42].

The Court finds- that with respect to human beings,thermography devices measure skin temperature very near thesurface. [Dudley X, 47; Hofmann I, 77; V, 13; Potchen XVIII, 49].Infrared and liquid crystal thermography produce images. Thethermoscribeproduces a paper graph. The Court finds- that theimages produced by the various thermographic devices are differentfrom those produced by other diag~stic devices which have knownefficacy. Testimony was received concerning a variety of otherimaging devices, including X-ray, CT scan and magnetic resonanceimaging. These devices directly depict the structures which theyimage [Potchen XVIII, 18-22, 24, 25], as cqmpared withthermography, which only measures heat differentials from a varietyof physiological causes. [Hofmann I, 77; Potchen VIII, 16; DudleyXII, 20; Herfert XIV, 29; Sperl XXXI, 173].

The question before this Court is whether the variousthermographic devices are within the scope of practice ofchiropractic as defined by MCL 333.16401(1) (b), which states:

(b) "Practice of chiropractic means that disciplinewithin the healing arts which deals with the nervous systemand its relationship to the spinal colunu:tand its inter-relationship with other body systems. Practice ofchiropractic includes:

: :(i) Diagnosis, including spinal analysis,determine the existence of spinal subluxations

toor

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" .

misalignments that produce nerve interference, indicatingthe necessity for chiropractic care.

(ii) The adjustment of spinal subluxations ormisalignments and related bones and tissues for theestablishment of neural integrity utilizing the inherentrecuperative powers of the body for restoration andmaintenance of health.

(iii) The use of analytical instruments, nutritionaladvice, rehabilitative exercise and adjustment apparatusregulated by rules promulgated by the board pursuant toSection 16423, and the use of X-ray machines in theexamination of patients for the purpose of locatingspinal subluxations or misaligned vertebrae of the humanspine The practice of chiropractic does not include theperformance of an invasive procedure requiringinstrumentation, or the dispensing of prescribing ofdrugs or medicine.

In interpreting MCL 333.16401, this Court is governed by the

Supreme Court decision of Attornev General vs. Beno, 422 Mich. 293

(1985). The key to the interpretation of the diagnosis provisions

of MCL 333.16401 is contained in the Beno,. supra opinion, beginning

at page 311:

First, an examination of MCL.333.16401; MSA 14.15(16401)in its entirety manifests to us an intent to carve outof the healing arts genr~ a limited profession known aschiropractic. While "practice of chiropractic... dealswith the nervous system" in relation to the rest of thebody, the diagnosis and treatment provisions of the Actfocus specifically on spinal subl~xations ormisalignments. MCL 333.16401(1)(b)(i), (ii); MSA14.15(16401)(1)(b)(i), (ii). The Act does not containthe general,all encompassingterms found in the ~of the Code pertainingto the practice of medicine.

Second, MCL 333.6401(2); MSA 14.15(16401) (2) providesthat interpretation of the chiropractic section is guidedby general definitions and principles of construction inArticle 1 of the Public Health Code. One of theparamount rules of construction provides that, "[t]hisCode shall be liberally construed for the protection ofthe health, safety, and welfare of the people of thisState. II MCL 333.111(2); MSA 14.15(1111) (2).

Where there are hazy lines-between the jurisdiction of

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health care professions, we think the public health andsafety is best protected by more strictly construing thejurisdiction of the more specialized and limited healthprofession in favor of the more comprehensively trainedand licensed profession. It would seem to be more inkeeping with the public protection to have the broaderdiscipline making diagnostic.observations about thosethings within the specialties of the narrower discipline,rather than vice versa. See, Anno: Scope of Practiceof Chiropractic, 16 ALR 4th, 58.

Thermographv Devices Do Not Locate O~ Determine Subluxations

This Court finds that there is no evidence that thermographic

devices of any type, in and of themselves, locate subluxations.

[Hofmann XXXI, 79-82; Dudley XII, 31; Herfert XV, 10; XVII, 45-46,

47-51]. Indeed, the testimony of the Plaintiffs and their expert,

Dr. Dudley, is consistent that thermography, unlike X-ray, cannot

directly locate a vertebral subluxation. Thermography, unlike X-

ray is aspecifically referred to in the statutenot as,

diagnostic device which chiropractors are enabled to use to

determine the existence of spinal subluxations or misalignments.

X-rays are generally accepted in tne chiropractic profession and

part of the standard of care for chiropractors. Radiology is

taught in the core undergraduate curriculum. [Dudley X, 42]. It

is part of the chiropractic standard of care. [DuVall XIV, 43;

Clum XI, 108].

However, the testimony indicates that although X-rays are

within the standard of care, it is only an "assumption" that

thermography is within the standard of care. [Clum, XI, 145]. In

fact, X-ray and thermography are "radically different in terms of

their application.II [Clum XI, 145]. Whereas X-ray is the chief

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diagnostic chiropractic and universallyis acceptedtool of

[Hofmann III, 135], thermography is based upon a "hypothesis" that

is related to subluxations. [Herfert XIV, 29].. X-rays locate

subluxations in the spine because they visualize the vertebrae,

whereas thermography scans beyond the spine [Hofmann V, 105-106;

VI , 55]. Thermography looks for the "effects" of a subluxation

[Hofmann XXXI, 87; Herfert XXXI, 131].

It is clear from the record that thermography, of whatever

type, does not directly locate subluxations, as does X-ray, where

the subluxations from the testimony ofexist. It is clear

Plaintiffs' own expert, William Dudley, that it is necessary to

scan the entire ofin a diagnosisoi'der to arrivebody at

subluxation. [XII, 32].

Dudley testified regarding infrared and liquid crystal forms

of thermography. He has never used the other devices, and in fact,

admitted to not knowing what dermathermography measures. [X, 49].

It was his testimony that infraoredthermography is the most

sensitive did sensitivebut he[X, 50], how thenot know

thermistors were on the NCM device, since he does ~ot use them.

[X, 51]. He indicated that he did not use the dermathermography

or NCM type devices because they were less reliable than the liquid

crystal and infrared thermographic devices. [XII, 91].

Dudley devicesalso felt that the hand-held lose their

calibration more quickly than the infrared or liquid crystal

variety. [XII, 94]. Although he basically indicated that the

hand-held de~iGes were better than nothing [XII, 91], he indicated

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that the NCM and thermo scribe are basicallydermathermogram,

useless in evaluating "faulted dermatome," which was the basis upon

which he arrived at a diagnosis of subluxation. [XII, 33]. It was

Dudley's opinion that if thermography was restricted to the spine

only, he would not be able to vouch for its reliability, and that's

the reason he scans the entire body. [XII, 31].

It is locateclear that directlythermography does not

subluxations. Hofmann was asked whether infrared thermography

discloses the existence of a subluxation, and he indicated that

thermography shows the "physiologic effects of a subluxation," but

indicated, "You don't see the bone out of place." [XXXI, 80].

Testimony from the other'Plaintiff, Dr. Herfert, was similar.

Herfert testified that a thermoscribe the brands(one of of

thermographic devices he uses) by itself does not indicate whether

there is a subluxation. [XV,. 10]. It was also Herfert's testimony

that all of the thermographic devices were interchangeable as

thermography, which inclutiewould thermoscribe, NCM, liquid

crystal, infrared or neurocalograph. [XVI, 144].

Thermoqraphv, Even If ScientificallY Valid,Is For Differential Diaqnosis Only

MCL 333.16401(1) (b)(i)m as interpreted by the Supreme Court

in Beno, supra, does not include thermography of any type as a

diagnostic device for use by chiropractors. "Diagnosis" under MCL

333.16401 does not include "differentials diagnosis." The Supreme

Court analyzed the statute in connection with the claim of the

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defendant, Beno, that he was examining the elbow to determine if

there was nerve interference. The Supreme Court stated in Beno:

While it is not directly established in the record, we areindirectly led to believe from the testimony that theexistence of a spinal subluxation or misalignment cannot beobserved by examination of areas away from the spine that maybe experiencing the pain of nerve interference. Rather, theexistence of subluxations or misalignments of the spine canonly be observed where they exist. This reading of the recordis fortified by the defendant's own brief, where it is stated:"[a]nd it is absolutely medically necessary to at times X-rayother parts of the body, other" than the spine, if thechiropractor is to accurately diagnose which of thesubluxations shown on X-ray is the cause of the patient'scomplaint. That may only be done by the elimination oflocalized problems, such as fracture or bone abnormality."Only bv the process of elimination of other possible maladies

, (differential diaqnosis) can the chiropractor then advise thepatient that the pain in the elbow was caused by the spinaldifficulty, which itself,can only be directly observed in thespinal area.

It could be helpful for the patient to know the consequencesof his subluxation or misalignment, and it may influence thedesirability of chiropractic treatment. Presumably, it wouldalso have the chiropractor explain why spinal treatment willnot in given situations cure painful symptoms. Nevertheless,to allow this kind of diaqnosis would require the chiropractorto recoqnize other maladies that are possible in many otherparts of the anatomy and, in such case, lead the patient tobelieve that a definitive di~nosis relating to those othermaladies that may be causing symptoms has been received. Wedo not believe the Legislature intended to authorize suchdiaqnostic techniques. Id at 312 (emphasis added).

During the course of the trial, this Court had the opportunity

to hear testimony from experts from various fields with varying

degrees of expertise and specialization. It is clear to this Court

that what is involved in the use of thermography of any type is the

process of "differential diagnosis." Basically, differential

diagnosis comes into play when there is a possibility of multiple

causes of a similar phenomena and one must differentiate among

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those multiple causes. [Potchen XVIII, 82; DuVall XXIV, 100;

Vlasuk XXVII, 62; Robertson XXIX, 55].

It is clear from the testimony of the Plaintiffs and their own

expert that thermography, of any type, is used for differential

diagnosis. The Plaintiffs introduced the American Chiropractic

Association's policy statement on thermography as "indicative of the

acceptance of thermography in the chiropractic profession.

[Plaintiffs' Exhibit 143]. Defendant introduced a subsequent and

revised ACA policy statement [Defendant's Exhibit 379].

Leaving aside for the moment the question of whether

thermography is nationally recognized in the chiropractic

profession and meets the standards of the profession for the use

and operation of such diagnostic instrument, it is clear that

thermography is used for "differential diagnosis." It is clear

from the plain reading of the policy statement itself, which was

written to be disseminated to the public for purposes of third-

arty reimbursement [Vlasuk XXVI~, 96], that thermography was

esigned for purposes of differential diagnosis. As stated in the

thermography:

"Thermography,as diagnostic aid, may be indicated when ahysiologicalimagingtest is needed for differentialevidence ofkin temperaturedifferences. Such test results must be"properlyorrelated with a thorough history, an appropriate clinical:xamination, and other diagnostic studies/tests as may be indicated'y clinical necessity. In this setting, diaqnostic thermoqraphyav be an aid in establishinq a differentiated diaqnosis and inetermininq a proqnosis."Emphasis added).

Vlasuk testified that it was for differential diagnosis

[lXXVII, 53-54]".

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Although Plaintiffs' expert, Dudley, indicated that the words

"differential diagnosis" in Exhibit 379 are superfluous [XII, 41],

he went on to testify under cross-examination that the process

involved in thermographicscanning is in effect "differential

diagnosis." Dudley's basic testimony was that thermography

measures skin temperature the depth of 2 rom., and that a number of

other causes influence skin temperature other than "faulty

dermatomes" (which is an indication to him of subluxation), such

as infectious processes, vascular disease, tumors, hematomas,

scratches on the surface of the skin, fractures, or emotional

causes. [XII, 20]. He indicated that it is very difficult for a...

professional to differentiate whether the dermatome is "at fault,"

or whether it is vascular disease. [XII, 35].

He also indicated that a lot of professionals are confused in

that they think the patient. has a faulted dermatome, when in fact

they may have a vascular disease. In that instance, he would not

treat a vascular disease, but woul~ refer the patient out. [XII,

36].

He went on to indicate that the process of determining whether

a thermal change was the result of a faulted dermatome or a

phlebitis .or arthritis "does include differential diagnosis."

[XII, 42]. Dudley also admitted that examination of the peripheral

vascular system with the use of thermography is a differential

diagnostic process. [XII, 49]. He also indicated that using

thermography to locate subluxations and to rule out or determine

if arthritis: is present is a differential diagnostic process.

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[XII, 49].

The entire process that Dudley described using thermography

with reference the examination thighsto the lateralof to

determine differences in temperature in the area supplied by the

lateral femoral cutaneous nerve was the process of differential

diagnosis. [Potchen XVIII, 39]. Dr. Potchen, who had been called

in rebuttal to Dr. Dudley, testified that distinguishing between

the effects of a subluxation and a peripheral nerve trap would be

the process of differential diagnosis absolutely. He went on to

state that using thermography to examine the peripheral vascular

system and to determine whether a condition was vascular in nature...

or the result of a subluxationwould be the "sine qua non" for

differential diagnosis. [XVIII, 32].

Because you are trying to differentiate whether it's due toa problem of the spine areas, where there are subluxations,versus a problem of the vessel, and where there iscontribution to diminished profusion.

Peripheral vascular occlusion j.s treated very differently fromthe problems of the spine, and that differential diagnosisallows one to put the proper treatment to the patient'sproblems. And it is an importantdistinction. .

Therefore, even if thermography was a scientifically valid

diagnostic procedure, which will be discussed below, it would be

one of differential MCLdiagnosis, which is precluded from

333.16401, as interpreted by Beno, supra.

Furthermore, the Supreme Court in Beno, supra, analyzed the

meaning of "diagnosis" in respect to whether a chiropractor could

perform a general physical examination. It concluded that, "A

strict interPretation of the word 'diagnosis' is most in tune with

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the lawmaker's intent. II Beno, supra at 326.

Beno had argued he should be able to take urine samples, hair

samples, blood pressure and examine the heart, lungs, eyes, ears,

nose and throat of his patients.

The purpose of these examinationswas variously given as

determining "abnormality of several organ dysfunctions" to

"stabilizing low back ailments" to determine if it was required to

refer the patient to a medical doctor or to indicate whether the

patient should not undergo chiropractic care. For e"xample:

Appellant examined the investigator' s heart because he claimeda spinal subluxation could possibly produce nerve interferencewhich in turn could produce a reaction in the heart. Thenerves that go to th~ hear, according to appellant'stestimony,come from the spinalcolumnand thereby create thepossibilitythat an irritationwithin the spinal column couldaffect the electricalimpulsesto the heart. "

Beno, supra at 319.

The Board of Chiropractic reviewed the record of the

administrative law examiner concerning Beno's practices and found,

that urine analysis and hair analysis were useful. The Board was

also of the opinion that there was no reason why a chiropractor

could not use the sphygmomanometer, stethoscope- and tongue

depressor, as long as the purpose "is not to specifically diagnose

conditions not amenable to chiropractic care." Beno, supra, 323-

324. The board also found it appropriate for chiropractors to

gather data which could be used to determine whether or not

chiropractic treatment was indicated, and if so, the specific

nature of nerve interference. The Board was also "supportive of

the concept of:differential diagnosis in the sense that it means

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deciding whether or not chiropractic care is called for." Beno,

supra, 324.

The Supreme Court held that these conclusions of the Board of

Chiropractic were "based essentially on the Board's willingness to

have the scope of chiropractic include differential diagnosis."

Beno, supra, 325. The Supreme Court rejected the invitation.

As expressed in the elbow issue, our assumption from therecord and the appellant's own arguments is that spinal

subluxations and misalignments can only be located at theirsource, and that the effects of nerve interferenc~ in otherparts of the body can only be ascertained by the eliminationof other causes of the symptoms. We do not see anything inthe words of the chiropractic licensing statute "diagnosis...to determine the existence of spinal subluxations ormisalignments that produce nerve interference" by the use ofphysical examination or, collection and interpretation oflaboratory specimens.

Beno, supra, 325.

The Supreme Court went on to conclude:

We find significant, as did the lower courts, the rejectionby the Legislature of the principle of differential diagnosis.The rejection of this language along with the other previouslymentioned considerations" indicate that a strictinterpretation of the word "diagnosis" is most in tune with-the lawmaker's intent.

Beno, supra, 326.

This Court concludes that, like the elbow X-ray and general

physical examination in a Beno, thermography does not locate

subluxations where they exist. It is, therefore, useful only for

differential diagnosis. Also, which the fact that other states may

allow thermography is not dispositive, since other states have

broader enabling statutes and have not enunciated the public policy

of strictly co?struing the chiropractic statute in favor of the

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protection of the health, safety and welfare of the people of the

state of Michigan.

ThermoqraphY is not ScientificallY Valid to MonitorPhysioloqy to Determine Subluxations or Misaliqnments

Testimony was received from five experts from various fields,

including three chiropractor, that thermography was not a

scientifically valid procedure in detecting subluxations or other

musculoskeletal problems.

The most eloquent witness in that regard was E. James Potchen,

M.D. Dr. Pot chen. holds not only a medical and a law degree, but

is board certified in radiolo~, as well as nuclear medicine. He

has served as chairman of the FDA committee on the efficacy of

diagnostic. tests; and specifically obtained a masters degree from

Massachusetts Institute of Technology to learn what would be

necessary to establish the validity of diagnostics as valid in

medicine. [VIII, 8]. "

In addition, Dr. Potchen has served as chairman of the Liaison

Committee on Medical Education, which accredits all American and

Canadian medical schools, and has also served as liaison to the

Board of Medical Specialties. His special interest is diagnostic

decision analysis, which is the process of appraising the efficacy

of diagnostic testing, which includes the entire spectrum of

imaging modalities. [VIII, 10].

In addition to presently serving as professor of physiology

at Michigan .Si;ate University School of Medicine, his special

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research area is in microvascular systems and the spine and brain.

since thermographic imaging tools are designed to.d~pict the image

of regional heat emission by conduction or infrared radiation

[VIII, 16], the field of microvascular research is particularly

applicable to the diagnostic efficacy of thermography.

Al though Dr. potchen is not an expert on the practice of

chiropractic, he does consider himself an expert on the spine and

subluxations of the spine. [VIII, 27]. He initially became

involved in thermography as an alternative to ionizing radiation

.in.1963 with regard to musculoskeletal conditions [VIII, 37] and

understands that thermography is purported to be a diagnostic tool..

..

in relationship to the spine and subluxations of the spine,

supposedly providing an index of increased or decreased heat in

areas where the spine is abnormal or in radicular manifestations

of the abnormalities of the spine. [VIII,38].

He understands that it is alleged that there is an,

interference manifested in a number of physiologic and clinical

events which alter the temperature emissions from portions of the

body, and indicates that there are four questions which need to be

answered in order to determine the efficacy of thermography:

first, whether thermography measures a"physiologic event that is

disrupted by the alleged pathology; second, whether or not one

knows the physiologic basis, is there clinical correlation, in

other words, does it provide any useful information; third, whether

there is any relationship between the information collected and any

""gold standard," such as exists with a CT scan or magnetic

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resonance image; and fourth, whether the degree of asymmetry which

has been the dominant ascription of proponents is different in

people who have no symptoms. [VIII, 39-41].

Dr. Potchen's opinion was as follows [VIII, 45]:

Specifically, in evaluating disorders of the spine andspecifically in evaluating subluxations, it[thermography] is absolutely no utility whatsoever. Allefforts to document it through any scientific efficacyresearch have not been successful.

And indeed it approaches a random measurement. Ithinkthe use of thermography, at least as my experience,there is no reputable physician in this state who usesit in the care of their patients despite the fact tha~it is available.

Dr. Potchen went on to indicate that thermography has no utility"

in diagnosing nervous system'disorders relating to the spine nor

in diagnosing nerve interference. [VIII, 48]. Thermography has

no efficacy in diagnosing the various definitions of subluxation

given by Dr. Herfert and Dr. Hofmann. [VIII, 48-50]. It also has

no efficacy in diagnosing where a particular nerve or group of

nerves is not functioning.,

[VIII, 51].

Basically, Dr. Potchen explained that the reason for this lack

of efficiency is that because thermography measures regional

differences in heat which are caused by variations in the

microvascular blood supply, and because these various skin vascular

beds open and close almost randomly in an effort to release heat,

efforts to find correlations with neural regulation of the

microvascular circulation have been unsuccessful. [VIII, 51-53].

This court also heard testimony from Michael Sperl, M.D. Dr.

Sperl is board certified in physical medicine and rehabilitation,

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and holds a specialty in electromyography. [XXXI, 134]. In

addition, Dr. Sperl was certified in thermography through the,

course given by Dr. Wexler in 1984. [XXXI, 141].

Dr. Sperl testified that he attempted to determine the

efficacy of thermography by comparing thermographic results with

known problems which were demonstrated by CT scans or EMG findings.

It was Dr. Sperl's opinion that he did not find thermography to be

diagnostically or therapeutically helpful. [XXXI, 158]. It was

also Dr. Sperl's opinion that thermography did not aid in

.monitoringthe body's physiology for determining the existence or

location of subluxation. [XXXI, 159]."

In light of the Supreme ~ourt's decision in Beno, supra, this

Court finds that Dr. Potchen and Dr. Sperl are more comprehensively

trained and licensed as medical doctors than chiropractors, and" in

keeping with public protection to have the broader discipline

making diagnostic observations about those things within the,

specialties of the narrower discipline," Beno, supra, 312, this

Court concludes that thermography is not a scientifically valid

diagnostic instrument for locating subluxations o.f the spinal

vertebrae.

Thermoscribe NCM, Dermathermoqraph are Less ReliableThan Infrared or Liquid Crystal Thermoqraphv

The "hand held" heat sensing devices are not within the scope

of practice of chiropractic for the following reasons.

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Although there has been testimony that they are the grandaddy

of the primitive ofpresent formstechnology [Herfert] and

thermography [Vlasuk XXVII, 76] plaintiffs own expert, Dudley, does

not use them because they are unreliable [XII, 91]. Dudley

recommends in his seminars that they not be used [X, 125].

There is no affirmation of their efficacy in the ACA Policy

statement [Defendant's Exhibit 379]. They are less sensitive [X,

50]" and tend to lose calibration more rapidly [X, 126]. While

there is testimony they are similar, theoretically, to other

.methods of thermography, they are unable to scan the entire body,

or large areas necessary to locate the "faulted dermatomes" which...

Dudley testified was necessa~ to locate subluxations [XXI, 33].

Therefore, although they are considered, theoretically, the same

as infrared liquid crystal, they are impossible to use for that

task [Dudley XXI, 33; Clum XI, 102].

If it should be suggested that the "hand held" devices are,

effective because they are used proximal to the spine, the record

indicates that, like infrared and liquid crystal, they are heat-

sensing devices and do not locate subluxations. The ~act that they

are not used by the medical profession [XIX, 41] is indicative that

they are not valid diagnostic devices, either in the common domain,

in chiropractic [XXIX, 50] or for differential diagnosis.

This Court finds that Plaintiffs have not established by a

preponderance of evidence that such devices are even useful as

analytical instruments and concludes that they do not monitor the

body's physioiogy for the purposes of determining subluxations in

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and of themselves, [XXXI, 79-82; XXI, 31; XV, 10; XVII, 45-46, 47-

50] and are less effective models of the infrared and liquid

crystal with the same theoretical limitations. This is confirmed

by Vlasuk, who does not use them and was never taught them in

chiropractic college [XXVII, 75], and by Dudley, who testified that

he could not be confident in scanning first the spine. for heat

differentials to locate subluxations [Dudley, XXI, 31].

The NCM, DTG and thermoscribe, although used (and perhaps

abused) have not been shown to be analyticalfor many years,

instruments within the scope of practice in Michigan. This is

based on the testimony of plaintiffs and their own experts with

vested financial,

interests. ' When considers thethis Court

testimony of Drs. DuVall, Robertson and Fr~as, it is left without

a doubt that such devices serve no purpose in locating subluxations

of the vertebrae of the spine. According to Dr. DuVall, their

results can be altered by mere pressure when used [XXIV, 40]. Dr.

...

Robertson, although instructed in their use at Palmer, apandoned .

their use when not required by the school or an employer [XXIX, 40-

41]. He testified they are of no value whatsoever:in detecting

subluxations [XXIX, 50-57].

Even if thermography'was scientificallyvalid within the

medical profession, it does not meet nationally accepted standards

of the chiropractic profession for the diagnosis of subluxations.

This is clear from the reluctanceof the American Chiropractic

Association that "is" germane to thethermographystateto

'chiropractic .profession, and to indicate only that it "may be"

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germane. [XX, 17] [XXVI I, 46].

The change from "is" to "may be" is indicative in the common

sense of the words of a statement of fact to one of mere

possibility.

As testified by Dr. Freas, a Michigan and Florida

chiropractor, board certified in diagnostic radiology, and a member

of the American chiropractic Association's Council on Diagnostic

Imaging, the ACA policy statement indicating that thermography only

"may be" germane to the chiropractic profession indicates to him

.that they are not saying it is definitely a diagnostic instrument

for the purpose of locating subluxations. [XX, 17]. Thermography,

is not taught in the core 'curriculum, as is X-ray, in every

chiropractic college. [XXIV, 43]. It is also clear that the

chiropractic profession has no national standards for diagnostic

instruments. [Marderosian XXI, 13; Robertson XXIX, 51]. In

addition, there is a raging dispute among members of the,

chiropractic profession whether thermography has utility in

diagnosing subluxations. [DuVall XXIV, 42; Freas XIX, 104-106;

Robertson XXIX, 57-58].

Dudley states that in order to be within the scientific

method, results have to be repeatable [X, 130] yet Hofmann states

that DTG and thermo scribe tests are not repeatable. [XV, 24-25].

Furthermore, based upon the Plaintiffs' own expert's criteria

for national acceptance, thermography has not met the test of time.

[Clum XI, 93]. It is clear that if thermography was a nationally

accepted standard of practice for the chiropractic profession, it

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, "

would be taught at the undergraduate level as part of the core

curriculum in every chiropractic college, as J:C-~ay is taught.

[Clum XI, 108, 145]. Even among the chiropractic profession, there

are different "theories" on how to interpret thermographic results.

[V, 18-21; VI, 60 ; XV, 141-142; XXIV, 15]. These theories of

"pattern" and "break" are indicative of a lack of uniformity and

st~ndardization of thermography within the chiropractic profession

itself, and leads the Court to believe that there is, in fact, no

nationally accepted standard for this diagnostic technique within

.the chiropractic profession.

......

Financial Self-Interest

Plaintiffs, Dr. Dudley and Dr. Vlasuk all demonstrate a

financial interest in the process of thermography, which is

indicative of a bias which colors their testimony.

This is particularly evident in the testimony of Dr. Dudley,,

who has used and billed for thermography since 1970 or 1971. [IX,

46]. He did this in spite of the fact that he did not take his

first course in thermography until 1976. [IX, 35,.. 48]. He has

repeatedly given seminars on behalf of salespersons for the

manufacturers of thermographic equipment, who have purchased

advertisements sponsoring his seminars. [X, 88]. He is

financially interested in thermography and earns a portion of his

living from teaching thermography, as well as performing

thermographic scans for his patients and for litigation purposes.

. [X, 62, 86, 118). He indicates that he charges $450.00 for a

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".I c .,

thermographic scan of the full body, and he performs thermography

on eight out, of 10 of his patients. [X, 52]. In addition, Dudley

had his own personal suit for charges for thermography which was

dependent on the outcome of this lawsuit. [XII, 4].

Dr. Vlasuk, who testified as Plaintiffs' "rebuttal expert",

also derives a substantial portion of her income form thermography.

[XVII, 77-81]. As indicated above, the purpose of her drafting the

policy statement of the American Chiropractic Association on

thermography (which is the only such policy statement ever drafted

.bythe ACA) was to obtain third-party reimbursement.

Obviously, the Plaintiffs themselves stand to gain a....

substantial amount i~ thermography is found to be within MCL

333.16401. Dr. Hofmann, for example, testified that he charges

$550 for a full body scan [V, 52] and that he performs up to five

to seven thermography studies per week. [V, 96]. Although Hofmann

does a full thermogram in only three to four cases per month, as

of April 1989, he was doing 25-3b thermograms per month. [VII,

24].

Dr. Herfert, by the same token, uses a thermoscribe, which has

a cost of between $1,600 to $2,000 for the equipment. [XIV, 115].

For a thermoscribe,which be uses frequently, he charges $15.

[XIV, 115]. For instance, on one patient, Toshika stamper, Herfert

admitted performing 59 thermoscribes. [XIV, 118]. In other words,

for one patient, he charged the Auto Club Insurance Association

approximately 50 percent of the cost of the entire thermoscribe

machine. [XIV, 120].

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, .

These thermo scribes are taken not only by the doctors of

chiropractic in Herfert's office, but also by chiropractic

assistants and X-rays assistants. [XIV, 120]. In the case of the

patient, stamper, although Herfert charged approximately $1,000 for

thermoscribe, he denied that the charge was excessive, xv, 5] even

though all of her thermoscribe print-outs were different, which

indicated that she was healthy. [XV, 10].

Furthermore he never utilized the thermoscribe results to

alter his diagnosis and/or treatment contrary to the purported

.reason for thermography given by Vlasuk. [XXVII, 64-66]. The same

approach is demonstrated by Dr. Hofmann, who billed for"-

thermography without any effect on case management. [V, 96-97].

Dr. Hofmann testified' that X-rays are always taken on the

first or second visit in virtually all cases [85% Hofmann, III,

135] and X-rays are the primary diagnostic tool for Hofmann. [V,

53]."'-

Despite the purported importance of a consistent protocol [see

ACA position paper on thermography, Exhibit 379], the only protocol

used by Herfert and Dudley for their patients is to have them take

off their clothes. [Herfert XV, 16; Dudley XII, 72, 79]. Although

Dudley indicated that he was being facetious, he had made the same

statement Under oath during his deposition in a malpractice case

filed against him. (X, 118-121]. That lack of protocol is in

keeping with Dr. Dudley's opinion that the only indication for

conducting a thermography is that the person be alive. [X, 52].

During' discovery , this Court ordered a random audit of

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< 0:>0

Plaintiffs' files pertaining to non-ACTA insured patients. The

Court finds these files to be representative of the Plaintiffs'

patient population. testified he usedAlthough Dr. Hofmann

thermography in 20 out of 100 non-insured cases [V, 101], and that

approximately ten out of one hundred patients receive a full body

thermography [V, 105], the randomly selected files show that there

are only two "spot" thermograms done at approximately $50.00 each.

This is indicative of not only the selection of insurance cases for

thermography [see Plaintiff Exhibit 155] but also of the lack of

.any.clinical need to perform thermography. The only indication for

the use of thermography demonstrated by the audit is the existence

of insurance to pay for it.

...

....

[XIII, 95].

Based upon the financial interests of Plaintiffs and their

experts, I find that where there is a direct conflict between their

testimony and the testimony of.the experts called by Defendant, the

Defendant's experts hold greater credibility, and their testimony...

has accordingly been given greater weight.

In conclusion, this Court finds that thermography as a means

of heat detection applied to human physiology does:not diagnose

subluxated or misaligned vertebrae or related bones and tissue.

There are a variety of thermographic devices, which, unlike X-rays,

do not :in thethemselves, subluxations whereand of locate

subluxations exist. Even if scientifically valid, thermographic

devices are for only ~seful differential diagnosis. This Court

finds that thermographic devices are not scientifically valid,

.particularly.with respect to monitoring the body's physiology to

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. .

detect subluxation. Nor does this Court find that thermography

meets nationally accepted standards of the chiropr~c.tic profession.

Plaintiffs' claim is therefore denied. ACIA is entitled to

$4,586.00 from Dr. Hofmann and $4,340.00 from Dr. Herfert for

monies previously paid for thermography (See Exhibits 429 & 430).

SCOPE DAMAGES

The Court will permit the partaies to develop an order for the

Court's approval covering the total amount of damages to be

.assessed in accordance with this opinion.

......

ACIA'S COUNTERCLAIM

Another area of controversy involves the application of

section 3157 of the No Fault Statute upon the facts and

circumstances in this case.

section 3157 of the Michigan No-Fault Statuteprovides: ,"A physician, hospital, clinic or other personor institution lawfully rendering treatment toan injured person for an accidental bodilyinjury covered by personal protectioninsurance, and a person or institutionprovidingrehabilitativeoccupationaltrainingfollowingthe injury,may charge a reasonableamount for the products, services andaccommodationsrendered. The chargeshallnotexceed the amount the person or institutioncustomarily charges for like products,services and accommodations in cases notinvolving insurance."

MCLA 500.3157; MSA 24.13157.

The leading case on Section 3157 is Dean V ACIA, 139 Mich 266

(1984). In Dean, the plaintiffs (as are the plaintiffs in this

63