KENNETH R. SPANAGEL, Judge.
This matter came before the court for non-jury trial, during which the defendant made motion at the conclusion of the state's case for acquittal under Crim.R. 29. The court, upon review of the testimony and the law, makes the following findings of fact and ruling on the motion.
The defendant, Linda Susan Wolff, a.k.a. Uhrich, Zigon, is charged with practicing chiropractic without a license, in violation of R.C. 4734.17. The state presented testimony of two witnesses. The first witness was Michael R. Moran, who is an investigator for the State Board of Chiropractic Examiners. Moran testified that, pursuant to a request to investigate by the board, he appeared at a kiosk at the Parmatown Mall regarding chiropractic screening, on an undercover basis, as he presented himself as a citizen and did not specifically identify himself as an investigator. Upon his inquiry as to what this particular kiosk's business was about, the defendant stated that she could measure the alignment of the shoulder blades and hips to see if there was a possible health problem. The only physical conduct that occurred between Moran and the defendant was some touching of his back related to the aligning of a machine referred to as a "SAM" machine, which stands for "Spinal Analysis Machine." Moran had stepped on this machine, which positioned his feet on some scales to measure weight on each leg. (The court will note that there were no other tests performed on Moran.) He was advised from that test that there was a differential measurement between his hips and shoulders, in that the left hip was higher than the right hip and the left shoulder was lower than the right shoulder. Upon Moran's inquiry whether this was a medical problem, the defendant stated that she could not tell until x-rays were looked at. Upon further discussion, the defendant then showed Moran a model of the lumbar vertabrae area, with nerves inside the model, and explained what the court will call the "concept of a pinched nerve." (The court will note that the evidence does not establish that the defendant made specific acknowledgements of a pinched nerve condition relative to Moran's health.) Upon further inquiry as to whom he should then see, Moran was advised by the defendant that he would be seeing a licensed chiropractic doctor. The defendant then gave some general chiropractic information about what chiropractic could do. The defendant took some initial health information from Moran, but the court notes that, to the extent that previous medical information was taken, the only question was whether Moran had any current back problems, to which the answer was no. The defendant then made out a form for internal purposes. A copy of that form, upon Moran's request, was given to him. No other tests of any kind were given to Moran.
Upon further inquiry by Moran of the defendant as to his medical condition, the defendant stated that she could not diagnose, as she was not certified to do so. This statement was made more than once that the defendant was not certified to diagnose, but that diagnosis would be done after a thorough examination. Moran then made an appointment with defendant to see the chiropractor, and was given a map and a certificate, identified as a "Health Pass," which provided a free extended exam and consultation, plus two free x-rays (if medically necessary).
The court then heard the testimony of Dr. Tornick on behalf of the State Board of Chiropractic Examiners, whose testimony set forth three potential areas of activity of the defendant that were felt to be criminal conduct: first, the taking of a case history; second, the examination by the "SAM" machine; and third, a differential diagnosis which, in the opinion of the state board, constituted activity within the realm of what only a licensed chiropractor may perform.
The defendant is charged with violating R.C. 4734.17 relative to the practice of chiropractic. The applicable statute is R.C. 4734.09, which states that:
"For the purpose of this chapter, `practice of chiropractic' or practice as a `chiropractor' means utilization of the relationship between the musculo-skeletal structures of the body, the spinal column and the nervous system, in the restoration and maintenance of health, in connection with which patient care is conducted with due regard for first aid, hygienic, nutritional, and rehabilitative procedures and the specific vertebral adjustment and manipulation of the articulations and adjacent tissues of the body. The chiropractor is authorized to examine, diagnose, and assume responsibility for the care of patients." (Emphasis added.)
The court has examined the conduct of the defendant in each context in which a potential violation of the law could be inferred. The first area of practice of chiropractic refers to the "utilization of the musculo-skeletal relationship." Webster's 9th New Collegiate Dictionary defines "utilization" as "to make use of or to turn to practical use or account." As to the alleged "utilization" activity, I am satisfied from the evidence which has been presented by the state that the defendant did not perform any activities which would constitute the utilization of the relationship between the musculo-skeletal system, or the spinal column, and that the defendant made no specific vertebral adjustment or manipulation of the articulations and adjacent tissues of the body. She did not perform any utilization and nothing was done in connection with any patient care. The court finds that she has not violated R.C. 4734.09.
The state has presented three theories of potential criminal conduct. These flow from the last sentence of R.C. 4734.09, which states that "a chiropractor is authorized to examine, diagnose and assume responsibility for the care of patients." (Emphasis added.) As to the first issue, the court has already found that there was no utilization or treatment. This leaves either examination, diagnosis, or the assuming of responsibility for care of a patient. The court next finds that there was no assumption of responsibility by the defendant for any patient care.
The state contends that the taking of a case history is violative of the statute. The court must construe the statute strictly, as this is a criminal proceeding. The court finds that the information taken did not constitute a case history which would have constituted the practice of chiropractic. The court notes that the only question was, "Do you have any current back problems?" and that the response was no (the court will note there was testimony that Moran has had previous chiropractic treatment). The court is satisfied that the sole question asked did not constitute the taking of any health history which would constitute the illegal practice of chiropractic. It involved no filling out of any specific medical history, whether it would be chiropractic-related or related to other medical conditions. As to whether the examination was violative of the statute, the court, again referring to Webster's Dictionary, notes that "examination" is defined as "To test the condition of; to inquire into carefully; to interrogate closely; or to test by questioning in order to determine progress, fitness or knowledge." (Emphasis added.) The court is satisfied that there was no examination performed within the required realm of a licensed chiropractor, in that the sole question was not a careful inquiry or a close interrogation, and was not a test by questioning to determine progress, fitness or knowledge. The court is satisfied that there was no examination which would be a criminal violation under R.C. 4734.09. The court will not comment as to whether the standard would be different had this been a violation under R.C. 4734.10 by a licensed practitioner.
The last theory remaining is whether a diagnosis was made. It is the contention of the state and the board that a differential diagnosis was made that constituted the practice of chiropractic. The court is satisfied that the conduct of the defendant was not a differential diagnosis which would constitute a diagnosis violative of R.C. 4734.09. Webster's Dictionary defines "diagnosis" as "the art or act of identifying a disease from its signs or symptoms; the decision reached by diagnosis or a concise technical description of a taxon." The court notes that the defendant at no time said either that the investigator had a pinched nerve condition or had a specific chiropractic condition which necessitated treatment. The defendant did say that based upon the "SAM" machine measurement, there were some imbalances of hips and shoulders. This is not information which requires a licensed chiropractor to determine. The court notes that testimony showed that these practices are performed by persons other than licensed chiropractors in the framework of the doctor's office. The court is also satisfied that the activity of the defendant did not constitute a "diagnosis" which would violate R.C. 4734.09.
The court therefore grants the defendant's motion for acquittal under Crim.R. 29. The court notes that part of the reason for this prosecution relates to concerns of the state board as to solicitation practices outside the chiropractor's office. In many areas of medicine nowadays, the business of obtaining patients may be as important as the business of treatment. The court notes that the board, under R.C. 4734.03, has the authority to establish rules governing the practice of chiropractic, and under R.C. 4734.10, it has the right to enforce the rules regarding advertising, specifically under R.C. 4734.10(H), regarding false, fraudulent or misleading advertising. It may be that if some activities took place at a location other than a chiropractic clinic, wherein specific items of care and diagnosis were performed by a non-licensed person, there could be violations under R.C. 4734.09. The board also has apparent authority under R.C. 4734.03 to set forth more specific rules regarding what the court will call off-site or out-of-office activities related to the chiropractic practice. Testimony was offered that the defendant's activity was in the nature of advertising or solicitation of business. At this time, there is nothing before the court to indicate that there are any rules or other established guidelines by the state which either restrict or control any activities as to off-site or out-of-office activities. The court would suggest that this may be an item for the board to consider, which might include a disclaimer in any out-of-office or off-site activity which might be applicable to clarify this type of situation where, on inquiry, a document with a disclaimer be given to the patient that might state: "This is only a preliminary screening, this is not an examination, and that any examination must be done by a licensed chiropractor." I am satisfied that the defendant verbally communicated that and I think a person of ordinary understanding would understand that. This is a matter that the board may wish to consider in the future.
The court therefore on motion of the defendant grants acquittal under Crim.R. 29. The defendant is therefore acquitted of this charge and discharged.
Judgment accordingly.