This article describes the law in motion regarding a lawsuit that seeks to protect Arkansas acupuncturists' right to use point injection.

IN THE CIRCUIT COURT FOR MILLER COUNTY, ARKANSAS
CIVIL DIVISION

DAN L. MARTIN,
GARY AXLEY,
MARY STONE,
SUSAN POWELL,
RON BRIT,
DAVID HULME,
PAULINE HAYNES,
MARGA JENNEN,
DON HALL,
ZOLA SCANTLING, and
CLARENCE BOYD,

Plaintiffs,

v.

ARKANSAS STATE BOARD OF ACUPUNCTURE AND RELATED TECHNIQUES,

Defendant. )

Case No. CV-2010-350-2

AMENDED COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

I. Jurisdiction.
1. In general, this amended complaint challenges as unconstitutional certain provisions of Arkansas Acts 2009, No. 1461, which amended a previous act that licensed Doctors of Oriental Medicine ("D.O.M.") to practice their profession in Arkansas. The provisions challenged by means of this suit are set forth below. This amended complaint asserts a claim that is an exception to the defense of sovereign immunity as set forth in Art. 5, § 20, of the Arkansas Constitution. See Cammack v. Chalmers, 284 Ark. 161, 163, 680 S.W.2d 689 (1984)("We view our cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined."). Furthermore, this complaint also constitutes a petition to the State Government of Arkansas for a redress of grievances, constitutionally protected by Art. 2, §4 of the Arkansas Constitution, and it specifically seeks remedies via Art. 2, §13 of the Arkansas Constitution for injuries created by the Arkansas General Assembly. Additional jurisdictional bases for this amended complaint are predicated on A.C.A. §§ 25-15-207 and 25-15-214.
II. Parties.
2. The Plaintiffs are licensed D.O.M.s and their patients:
(A) Plaintiff Dan L. Martin is a citizen of Arkansas living in Texarkana, Arkansas. He has received extensive education in the field of oriental medicine. Since 1997, his occupation has been that of a D.O.M., a profession authorized via Arkansas Acts 1997, No. 816, A.C.A. § 17-102-101, et seq. He practices his profession in an office named Northfield Acupuncture and Alternative Medicine Clinic, that is located at 619 East 6th Street, Texarkana, Arkansas. He provides treatments to his patients that are not obtainable through or offered by other licensed medical practitioners and that are within the scope of the practice authorized for that of a D.O.M. His education, knowledge and experience in this field constitutes a valuable property right. See Hake v. Arkansas State Medical Board, 237 Ark. 506, 510, 374 S.W.2d 173, 176 (1964). He has a constitutional right to work and earn of living by exercising this valuable property right.
(B) Plaintiff Gary Axley is a citizen of Arkansas living in Waldron, Arkansas. He has received extensive education in the field of oriental medicine. Since 1997, his occupation has been that of a D.O.M., a profession authorized via Arkansas Acts 1997, No. 816, A.C.A. § 17-102-101, et seq. In the past, Plaintiff Axley had an office in Arkansas and treated patients there, but he ceased such practice in Arkansas as a direct result of the adoption of A.C.A. §§ 17-102-312 and 17-102-313. Since then, he has established his practice in an office located at 303 East Ray Fine Blvd., St. 3, Roland, Oklahoma. He provides treatments to his patients that are not obtainable through or offered by other licensed medical practitioners and that are within the scope of the practice authorized for that of a D.O.M. His education, knowledge and experience in this field constitutes a valuable property right. See Hake v. Arkansas State Medical Board, 237 Ark. 506, 510, 374 S.W.2d 173, 176 (1964). He has a constitutional right to work and earn of living by exercising this valuable property right.
(C) Plaintiffs Mary Stone, Susan Powell, Ron Brit, David Hulme, and Pauline Haynes, live in either Arkansas or other States, and all are patients of Plaintiff Martin. These plaintiffs have certain medical conditions that were successfully being treated by Plaintiff Martin prior to enactment of Arkansas Acts 2009, No. 1461. As a result of the enactment of Arkansas Acts 2009, No. 1461, Plaintiff Martin has been unable to continue treatments previously provided to these patient plaintiffs, to their detriment and injury. The enactment of Arkansas Acts 2009, No. 1461 has thus abridged these plaintiffs constitutional right to choose beneficial medical treatments for their bodies. See Karp v. Cooley, 493 F.2d 408, 419 (5th Cir. 1974).
(D) Plaintiffs Marga Jennen, Don Hall, Zola Scantling, and Clarence Boyd live in either Arkansas or other States, and all are patients of Plaintiff Gary Axley. These patient plaintiffs also have certain medical conditions that were successfully being treated by Plaintiff Axley prior to enactment of Arkansas Acts 2009, No. 1461. As a result of the enactment of Arkansas Acts 2009, No. 1461, Plaintiff Axley has been unable to continue treatments previously provided to these plaintiffs, to their detriment and injury. The enactment of Arkansas Acts 2009, No. 1461 has thus abridged these plaintiffs constitutional right to choose beneficial medical treatments for their bodies. See Karp v. Cooley, 493 F.2d 408, 419 (5th Cir. 1974).
3. The Defendant Arkansas State Board of Acupuncture and Related Techniques ("Board") was created by Arkansas Acts 1997, No. 816, codified at A.C.A. § 17-102-201, et seq. Via A.C.A. § 17-102-206, the Defendant Board may "[g]rant, deny, renew, suspend, or revoke licenses to practice acupuncture and related techniques" and "be sued." Pursuant to its statutory powers, the Board has granted to Plaintiffs Martin and Axley licenses to practice as D.O.M.s. The Defendant Board's office is located at 1020 West 4th Street, Ste. 400, Little Rock, Arkansas 72201.
III. Factual and Statutory Basis for Cause of Action.
4. In 1997, the Arkansas General Assembly enacted the Arkansas Acupuncture Practices Act, Arkansas Acts 1997, No. 816. This act defined certain relevant terms as follows:
As used in this chapter:
(1) "Acupuncture" means the insertion, manipulation, and removal of needles from the body and the use of other modalities and procedures at specific locations on the body for the prevention, cure, or correction of a malady, illness, injury, pain, or other condition or disorder by controlling and regulating the flow and balance of energy and functioning of the patient to restore and maintain health, but acupuncture shall not be considered surgery;
(2) "Acupuncturist" means a person licensed under this chapter as a doctor of healing arts to practice acupuncture and related techniques in this state and includes the terms licensed acupuncturist, certified acupuncturist, acupuncture practitioner, and Oriental acupuncture practitioner;
* * *
(6)(A) "Related techniques" means the distinct system of basic health care that uses all allied diagnostic and treatment techniques of acupuncture, Oriental, traditional, and modern, for the prevention or correction of a malady, illness, injury, pain, or other condition or disorder by controlling and regulating the flow and balance of energy and functioning of the patient to restore and maintain health.
(B) As used in this subdivision (6) "related techniques" include, but are not limited to, acupuncture, moxibustion or other heating modalities, cupping, magnets, cold laser, electroacupuncture including electrodermal assessment, application of cold packs, ion pumping cord, lifestyle counseling, including general eating guidelines, tui na, massage incidental to acupuncture, breathing and exercising techniques, and the recommendation of Chinese herbal medicine lawfully and commercially available in the United States. Provided, "related techniques", including, but not limited to, tui na, shall not involve manipulation, mobilization, or adjustment to the spine or extraspinal articulations.

See A.C.A. §17-102-102.
5. This act specifically authorized acupuncturists to use whatever "modalities and procedures" that might prevent or cure a patient's malady or illness.
6. Pursuant to the Board's rulemaking authority, it adopted rules defining the scope of practice for licensees such as Plaintiffs Martin and Axley as including "all traditional and modern diagnostic, prescriptive and therapeutic methods utilized by practitioners of acupuncture and oriental medicine world wide," and specifically "injection therapy".
7. As authorized by both Arkansas laws and rules, Plaintiffs Martin and Axley have developed Oriental medicine practices that include intravenous drips and the injection of substances into their patients, and these treatments are beneficial for them, and particularly those named plaintiffs here who are patients of Plaintiffs Martin and Axley. During the course of these practices, no harm was caused to any patients as a result of the administration of these injections.
8. From the time of the adoption of the Arkansas Acupuncture Practices Act in 1997, to and through the Spring and Summer of 2009, no harm or other injury was caused to any patient of Plaintiffs Martin, Axley or any other Arkansas D.O.M.s by the administration of intravenous drips, injection of substances or any other injection therapy, and consequently this practice posed no threat to the health, safety or welfare of any citizen or resident of Arkansas. To the contrary, the patients of Plaintiffs Martin and Axley were substantially benefited by such treatments, including those plaintiffs here who are patients of Plaintiffs Martin and Axley.
9. During the 2009 Regular Session of the Arkansas General Assembly, it enacted Acts 2009, No. 1461, certain codified provisions thereof being the following:
§ 17-102-312. Legend drugs.
An acupuncturist as defined in § 17-102-102(2) shall not prescribe, dispense, or administer a legend drug as defined under § 20-64-503.

§ 17-102-313. Injections.
An acupuncturist as defined in § 17-102-102(2) shall not administer an injection of a substance.

10. The enactment of A.C.A. §§ 17-102-312 and 17-102-313 occurred notwithstanding the complete absence of any harm to the health, safety or welfare of any citizen or resident of Arkansas caused or posed by Plaintiffs Martin or Axley, or any other Arkansas D.O.M. as a result of the administration of such modalities and procedures otherwise proscribed by §§ 17-102-312 and 17-102-313.
11. The "police power" legislative authority of the Arkansas General Assembly extends to matters that protect the health, safety, and welfare of the citizens and residents of Arkansas, but §§ 17-102-312 and 17-102-313 are outside this power in that they proscribe medical treatments that are beneficial to patients in the complete absence of any evidence of harm posed by injection therapy. Consequently, §§ 17-102-312 and 17-102-313 abridge the constitutional right to work and earn a living of Plaintiffs Martin and Axley. Furthermore, §§ 17-102-312 and 17-102-313 constitute direct abridgements of the patient plaintiffs' constitutional right to choose beneficial medical treatments for their bodies.
12. The Defendant Board is required via A.C.A. § 25-15-216 to change existing regulations "as soon as is practicable after each regular session" of the General Assembly. Notwithstanding the fact that Arkansas Acts 2009, No. 1461, was adopted more than a year ago, the Defendant Board has unlawfully failed and refused to amend its existing regulations as a result, and thus jurisdiction for this action is predicated in this respect on A.C.A. § 25-15-214. However, if the Defendant Board does amend its existing regulations to conform to Arkansas Acts 2009, No. 1461, all plaintiffs will be damaged as a result, and in that event, jurisdiction for this action would be predicated on A.C.A. § 25-15-207.
Wherefore, the premises considered, all Plaintiffs request the following relief:
A. That this court, after hearing, adjudge and declare that §§ 17-102-312 and 17-102-313 are unconstitutional and violative of the Arkansas Constitution;
B. That the Defendant Board, and all other officers, agents and employees of the State of Arkansas acting in conjunction and concert with said Board, be enjoined from enforcing §§ 17-102-312 and 17-102-313.
Respectfully submitted this the __ day of September, 2010.
        

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