The Landmark Victory for Surface EMG
Cover Stories
Written by TAC Staff   
Tuesday, 14 November 2006 16:59 Read : 2499 times

In January of 2005, David Marcarian and his company, PBI/MyoVision, defeated a group representing most of the major insurance companies and the State of Florida, who questioned the validity of surface EMG.  The case was appealed to the Superior Court of Florida, with an attempted appeal to the Supreme Court of Florida. Marcarian and MyoVision again prevailed with a unanimous decision, proving the validity of the surface EMG technology Mr. Marcarian developed twenty years earlier.

It was a landmark decision causing reverberations throughout the chiropractic profession as well as other healthcare professions. This definitive case evaluated the scientific literature and determined that the equipment is capable of differentiating injured patients from those who are not.

In an interview with The American Chiropractor, David Marcarian talks about the victory that surface EMG won for chiropractic and how surface EMG proves chiropractic efficacy.

TAC:  What is the behind-the-scenes story regarding MyoVision’s formation?
Marcarian:
  After developing a surface EMG technique at NASA in the mid-80’s, I was awarded a $450,000 grant from the National Institutes of Health (NIH) to design what is known today as the MyoVision. Precision Biometrics, Inc., (MyoVision) is the oldest and most respected supplier of surface EMG equipment in the world. 

TAC:  How did you become involved in the chiropractic profession?  What inspired you?
Marcarian:
  What inspired me was that, in 1988, a DC who had been the bottom gunner on the B-17 Flying Fortress in World War II called me and told me that he had read about my experience at NASA and thought that the technology I developed under the NIH grant could be helpful to chiropractors.

He had never flown since WW II, so I agreed to fly to his office, as he was sixty-five at the time. He was one of the kindest souls I have ever met. His name was William McIlvaine, DC, and he was known throughout Oregon as one of the best chiropractors in the state. 

Anyhow, I flew to his office, and tested all his patients one day.  I was shocked to see that their muscle tension patterns correlated completely with their complaints and that their muscle tension dropped significantly post adjustment.  There was one exception: a patient who had very even, very low levels of muscle tension. 

I said, “Dr. McIlvaine, there is only one problem.  This one patient has no issues at all that I can find.”

He said, “He is a friend without any issues, and I threw him in to see if your machine was foolproof or not.”

After that, I was hooked on both chiropractic and proving the value of it.

TAC:  What are your goals for the chiropractic profession? 
Marcarian:
  My goals are to offer the chiropractic profession a new way to solve three major problems: ethical marketing, tracking progress and protection against insurer’s attempts at refunded payment due to lack of documented justification for care. My goal is to encourage doctors to use objective data, instead of clever marketing techniques, to obtain new patients and grow their practices in an ethical, scientifically sound manner with the resultant improved public perception of chiropractic.  There has been a sudden increase in the number of cases where insurers are actually going after doctors for back pay for cases lacking documented proof of the need for care.  Insurers are actually reviewing patient records and demanding a refund of payment for care where the doctor cannot prove objectively that the patient needed care. Recently, a MyoVision owner reported winning such a case, saving $50,000 in payments and $20,000 in legal fees, because she documented the need for care with her MyoVision. 

The need for documentation should be a requirement for practice.  How many of us would see a dentist that selects the tooth to drill into by intuition?  Or a medical doctor that prescribes a level of thyroid medication without blood tests?  All other health care professionals use objective data for determining treatment, and so should we.

In the past, we used to go to dentists when in pain.  Now, we go to prevent pain.  What changed dentistry?  They began using those little red tablets (disclosing tablets) that “show” plaque, proving the need for care.  I am offering a tried and true marketing method, similar to the dentists’ disclosing tablets, which may replace questionable marketing techniques with the use of objective data. Surface EMG provides this visual proof for chiropractic in the same manner the disclosing tablets do for dentists. 

By using the simple-to-understand visual, graphical representation of subluxation, you no longer have to waste your time with a futile attempt to convince people of their subluxations. As the color graphics, which correlate with subluxation (you cannot measure subluxations directly) do the job for you. Furthermore, this objective data makes you a much better doctor, since you are relying upon solid outcome measures, and not just your intuition.

So many doctors have told me how surface EMG has prevented the loss of patients, because they alter their adjusting technique if they are not seeing improvement in the tests.  To add to it, patients get very involved in their own progress by using the scans as a means of tracking their own personal progress.

The appealing color graphics lead patients to refer friends and family for testing as a secondary benefit.

The main reason instrumentation is so effective is it focuses the patient on function and not symptoms. We all know that symptoms are not the most effective way to determine spinal dysfunction.

I also want DC’s winning major legal victories for their patients.  Through proper use of instrumentation, you can win Personal Injury and Workers Comp cases without ever appearing in court.  By presenting objective data using the combination of dual inclinometry range of motion and surface EMG, attorneys are much more likely to settle cases.  The last thing they want presented to a jury is the objective evidence that a patient is injured. 

But, to be fair, it also benefits insurers. I, personally, was involved in three cases where a total of 2.5 million was being sought. All three cases were dropped after testing, as the patients turned out to be symptom magnifiers.  But, the bottom line is that the purpose in using objective data is to get the truly injured the care they deserve/need, and those that are not injured removed from the system; so it truly makes the entire system function more fairly for everyone. 

The reason that it is so effective in the legal arena is the same reason I have never lost a case in court:  The opposition presents their “opinion” (with no data) that the patient is not injured almost as policy; and I present objective data, proving the presence or absence of soft tissue injury. Objective data (dynamic sEMG and ROM) always wins over opinion. When doctors utilize it properly, they regain control of patient management, and their decisions cannot be questioned because they have the data to back them up. 

TAC:  Tell us about your victory in the Florida Superior Court case.
Marcarian:
  The state of Florida determined, based partially upon doctors who were trained to focus on the use of the sEMG for marketing purposes only (using static sEMG and not dynamic), that the device was not medically valid and, therefore, made it illegal to bill personal injury for it (PIP insurance).

TAC:  Can you give us a summary, or the highlights of that case?
Marcarian:
  The most interesting thing about the case was that I was the only person out of all the sEMG companies to show up in court!  It was me against nine attorneys and, I believe, eight expert witnesses. Their star expert witness was an individual with an MD/PhD who specialized in surface EMG.

The big surprise was the Florida Chiropractic Association. When I arrived in court, I believed that the FCA would be on “our” side, there to help the chiropractors; but, instead, their representatives testified on behalf of the insurance companies and the State of Florida, that there was no validity to sEMG.

Why was I the only person to show up?  After reviewing the literature that was considered admissible in court, it became quite clear.  MyoVision was the only multifunction sEMG system with research that met all the quality standards/requirements requested by the court.  Furthermore, there were no direct financial ties between the publishers of the research and my company. This made it impossible for the attorneys to attack the validity of the research I presented in court.

In court, the attacks on me, personally, were brutal. The nine attorneys did everything they could to destroy my credibility; but each time they attempted, my credibility was further bolstered, and they eventually backed down.

Perhaps the most fun interaction was when an attorney “threw down” an advertisement in front of me, and raised his voice (just like on TV), implying that this advertisement proved my actual goal for my company.  The advertisement had a headline, which stated something to the effect: “HOW TO DRAMATICALLY INCREASE YOUR INCOME WITH SURFACE EMG.”  He was so excited, as he felt he had finally nailed me. 

Well, unfortunately, he had not read the ad carefully, and the ad turned out to be from another company!  I believe the judge asked him to sit down after that.
Another major highlight for me, personally, was how the judge, in my opinion, relied heavily upon research performed with my equipment in making her decision.  It was a wonderful feeling to know that this device I invented was given so much respect.

The bottom line is that I presented, in a completely unbiased manner, the scientific literature in as pure a form as possible. The judge agreed with my interpretation of the literature, and the case was won.

TAC:  What is the impact this has on the chiropractic profession as a whole?
Marcarian:
  Impact?  This case will have a monumental impact on chiropractic in so many ways.  It gives chiropractors the power to determine when and how to care for their patients, and the power to prove to insurers the need for care by simply performing dual range of motion testing and dynamic surface EMG.  We now have a court-validated, research-validated tool which can be used to show that chiropractic is effective, to document injury or the lack thereof, and a precedence-setting case which can be used to establish the validity of surface EMG in any court in the country, if it is questioned.  

No longer will a doctor be called in for review with only his or her opinion for justifying why a patient is a chiropractic patient. No longer will chiropractors have to fear going to court, as they have the security, when owning unbiased court-validated instrumentation, that the tool can be used to support their position.  Chiropractors now have objective data to PROVE that what they do really works. 

But the main achievement here is that now chiropractors can proudly practice as professionals, and use instrumentation that helps them focus on patient care.  By using instrumentation, there is no need for clever marketing schemes, as patients will provide referrals for spinal screenings and doctors can build their practices based upon doing a good job and simply proving it with objective scientific data. 

To continue development, we are currently in the middle of numerous major research studies with famous researchers who have selected MyoVision as the “tool of choice,” due to its proven record of reproducibility and quality.  I am confident that these studies will further prove the value of chiropractic.

TAC:  How is this victory important to chiropractors on an individual basis?
Marcarian:
  There has been a major shift in the world of insurance and workers compensation:  If you cannot prove through objective documentation that the patient needs to be cared for, you can forget about payment.  This case effectively establishes a manner by which doctors can protect themselves against the scrutiny of insurers and worker compensations boards by having the established objective data required to prove need for care. 

In addition, winning this case helped lead another major insurer, American Specialty Health Network, to alter their policy on surface EMG.  Up to this point, any users of surface EMG equipment were excluded from their extremely fast-growing provider network.  I presented the research to their extremely well qualified Technology Assessment Committee (TAC) and their policy was reversed the following week. This means that thousands of doctors who were not formerly eligible as ASHN providers can now re-apply and begin seeing patients almost immediately.

TAC:  What is the most common problem you see among chiropractors today?
Marcarian:
  The gap in utilization of high tech instrumentation between the chiropractic profession and all other health care providers is the biggest problem.  Patients have become accustomed to determining the doctor’s credibility based upon the technology they have.  Dentists have digital X-ray, medical doctors use all kinds of high tech tools, and we need to also utilize technology, if we are going to be viewed as credible health care providers.  Patients expect it and, if we don’t respond, we are going to lose credibility.  Use technology, and everyone will know the value of what we do and how well it works.

TAC:  In the most recent Best Practices Low Back draft document written by the Council on Chiropractic Guidelines and Practice Parameters (CCGPP), the authors sited two studies, Haldeman, et al., {Haldeman, S., Chapman-Smith D., et al., 1993 1369/id} and Henderson, et al., {Henderson D., Chapman-Smith D., et al., 1994 526/id}, that led the CCGPP to the conclusion that there was insufficient evidence available to recommend the use of the surface EMG.  Is there any evidence you can provide for them in support of this technology?
Marcarian:
  What a great question.  All one must do is look at the dates on their references and the names of the authors to recognize the lack of validity to their claim. First of all, these are not two independent reviews. The same author is on both papers, meaning that it is their opinion and, without two completely independent authors, is lacking the scientific scrutiny one would expect from a truly scientific review. It is typical, when attempting to prove one’s theory, to rely upon multiple independent researchers, not the same researcher.  The biggest issue with their viewpoint is the fact that they are relying upon papers published sixteen years ago to support their position. If we were to rely upon information sixteen years ago, we would still be using antibiotics to treat ear infections.
You have to ask the question, “Why would they ignore the most recent literature on the topic?” 

Perhaps, because this new literature supports the use of surface EMG, which makes you question their motives in ignoring data which support the use of it.
Since the year 2000, there has been an explosion of research supporting the technique for sEMG evaluation provided by dual range of motion combined with surface EMG, and this is summarized best by reviewing the papers I presented which lead to winning the Superior Court case in Florida and, by simply reading the paper which summarized all this research, authored by Geisser, et al., 2006, titled “A Meta-Analytic Review of Surface Electromyography among Persons with Low Back Pain, and Normal Healthy Controls,” published in the Journal of Pain, November 2005.  This paper summarized, quite nicely, forty-four studies, and up-to-date research (beyond 1993), and is, therefore, a more reliable source of information with regard to the validity of surface EMG.  As stated in the abstract: “SEMG measures of flexion-relaxation appear to distinguish LBP (low back pain) patients from controls with good accuracy….” 

It was after I presented this new evidence to ASHN that they altered their policy. For ASHN’s Technology Review Committee to alter their policy on sEMG, as I mentioned earlier, makes us further question the CCGPP’s motivation and conclusions with regard to surface EMG. 

It is actually quite simple: In the court case, the State of Florida and all the major insurers threw the absolute best expert witnesses at me and I still proved the validity of surface EMG in court.  If they could not win this case, it was purely due to the fact that surface EMG is, in fact, valid when performed properly.  If the CCGPP were to, instead, state that properly performed, surface EMG is valid, I would agree with this statement, as it applies to any diagnostic equipment. That is what I believe they truly wanted to make clear but, obviously, they threw out the baby with the bathwater.

Perhaps the most unfortunate result of their conclusions, contradicting the most recent scientific literature, is that CCGPP’s guidelines have no credibility and appear to be more of a political statement, rather than a set of guidelines based upon science and logic. I would love the opportunity to present some of the literature that has been published in the sixteen years since the publications they referenced, so that their guidelines more accurately reflect the scientific validity of surface EMG.

TAC:  Where do you see the future of chiropractic headed?
Marcarian:
  Chiropractic is on the verge of a major breakthrough. Through the integration of technology and high tech tools, the public’s perception of chiropractic will improve dramatically, and it will turn into a field, like dentistry, where people visit their chiropractor to prevent illness rather than treat it.

TAC:  Any final words for our readers?
Marcarian:
  One of the unfortunate aspects of a profession filled with such passionate individuals is that we sometimes make decisions, not through the use of critical thinking but, instead, by “following” what those we want to believe in as our leaders tell us.  I have proven myself in a major court of law, which gives me AND my equipment a proven credibility with regard to instrumentation.  It is important that you purchase equipment from individuals with similar experience, since you are eventually going to need them to support your use of the equipment, if questioned by insurers, your board, or workers compensation boards. 

Drop the emotion.  Avoid sub-standard equipment by doing your research. Does the device have a dual inclinometer?  It is required by the AMA to bill insurance.  Was the device designed to perform the sEMG’s test properly? Remember the test must be performed properly to be considered valid. Does the device have a separate probe for dynamic sEMG?  Does the thermography device have tubes at the end of the sensors to push the hair out of the way for a measurement above the hairline?  

Too many doctors have called me pleading with me to take a trade on a three-month-old machine they purchased impulsively from another company I can’t help them.  Take your time; learn everything about a tool before jumping on the bandwagon. There are no silver bullets or instant solutions, so do your research before you buy. 

Remember that philosophy is wonderful and is the backbone of the profession, but you can’t take it to court. Let your thorough research findings be what guides your equipment selection decisions.

David Marcarian, M.A., is founder and president of Precision Biometrics, supplier of the MyoVision sEMG and Thermoglide systems. He lectures for Palmer College of Chiropractic, Life Chiropractic College East and all U.S. chiropractic associations that mandate sEMG training endorse his course. He has personally instructed more than 6,000 chiropractors on proper sEMG use.

Mr. Marcarian can be reached at 800-969-6961, by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it , or visit his company’s website at www.myovision.com.


 
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