Laws governing holistic healing: some basics

Basic legal issues surrounding holistic healing include licensure and credentialing, malpractice, professional discipline and questions of food and drug law.

Much of the early work is still good, and can be found online in A Fixed Star in Health Care Reform: The Emerging Paradigm of Holistic Healing.

By permission of Arizona State Law Journal, the entire 1995 article was placed online through Columbia University's Rosenthal Center for Complementary and Alternative Medicine. Much of the text (sans footnotes) is reproduced below.

For those who want the snapshot, the conclusion reads:

The emergence of holistic healing indicates a movement from medical orthodoxy toward a broader conceptualization of illness and health. To safeguard patient choices and recognize the growing body of literature regarding alternatives, policymakers should reexamine the reduction of healing to medicine, and the equation of nonmedical alternatives with fraud. The current regulatory scheme, embodied in state "practice of medicine" statutes and related case law, reflects an outmoded view of health care, in which the physician is the sole purveyor and guardian of health.

Constitutional norms and common law doctrines such as informed consent and assumption of risk provide some support for giving patient preferences greater deference. These doctrines should be expanded to recognize patient interest in complementary healing modalities. Moreover, since common law fraud protects patients against "quacks," lawmakers should acknowledge and encourage a more integrated system of healing professionals.

To shift from an exclusively medical paradigm to a framework that includes touch and other forms of holistic healing does not mean that the insights, discoveries, and therapeutic devices of modern medicine will be discarded or diminished. Nor does the movement from medicine to healing mean returning to the Dark Ages or succumbing to quackery. Rather, rethinking the paradigm means freeing the law from conceptual and historical limitations, and opening to embrace a broader set of possibilities for the journey into health.


INTRODUCTION

The debate over health care reform has challenged pivotal assumptions about the way americans care for themselves and their families. For example, the possibility of health care rationing has challenged the assumption that a patient receives all the care necessary to regain health. [1] Similarly, advances in medical technology have challenged the assumption that nature sets the bounds of birth [2] and death. [3] Many diseases lead to chronic or terminal hospitalization [4] and to a societal perception that technology alone cannot heal disease. [5]

These challenges in foundational assumptions about health care have resulted in a paradigm shift, or at least a change in perspective or emphasis, from orthodox medicine [6] to more holistic approaches to healing. [7] The shift in part reflects a recognition that the patient, as a person, matters, that mind and emotions do affect health, and that orthodox medicine has limits, or at least can be complemented by alternative healing methods. [8] Patients are claiming the alternatives for themselves, [9] and policymakers have begun to respond, in part, by creating an office of alternative medicine ("OAM") at the national institutes of health. [10]

This article examines the extent to which the legal system accommodates, or even tolerates, a broader spectrum of healing than "medicine." Essentially, the law defines and licenses the "practice of medicine" in terms that entrench the medical profession and that exclude all other forms of healing as the "unauthorized" practice of medicine, a crime. The purported justification is to prevent fraud and protect public health. The regulatory paradigm, however, has two flaws: first, it reflects the private interest of the medical academy as a professional monopoly, an interest that does not coincide with the prevention of fraud; and second, rather than protecting public health, the current framework limits consumer choice, denigrates patient autonomy, and diminishes patient welfare.

Section I of this article explores the regulatory problems posed by a paradigm shift from strictly medical to more holistic forms of healing. Section II analyzes state licensing schemes regulating the "practice of medicine" and the way courts have interpreted these statutes when confronted with alternative practitioners. Section III places the legislative and judicial response to alternative healers in historical context and evaluates whether existing statutes and judicial attitudes toward healers actually serve the values they espouse, namely, preventing fraud and protecting health care consumers. Section IV suggests avenues for regulatory reform that disentangle the prevention of fraud from the protection of medical orthodoxy, and that more fully serve consumer choice and patient autonomy.

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I. THE PARADIGM OF HOLISTIC HEALING

A. A Hypothetical: The Case of Quicksilver

1. Quicksilver's Dilemma

Consider the following scenario: Quicksilver, a trader on the New York Stock exchange, develops an excruciating pain in his abdomen. He visits his physician, Dr. Knowsomething. After numerous diagnostic procedures, Dr. Knowsomething opines that there is an abnormal growth in Quicksilver's abdomen, requiring immediate surgery.

Quicksilver's decision is complicated by the fact that he has malignant hyperthermia, a rare condition that renders him susceptible to death on receiving general anaesthesia. [11] Quicksilver visits a local healer, Sagebrush. Sagebrush explains that he holds no medical degree, that he is not a minister, and that he does not follow the tenets of any organized church.

Sagebrush places his hands on Quicksilver's abdomen. Quicksilver feels warmth and a slight tingling emanating from Sagebrush's hands. At the end of the session, Sagebrush says Quicksilver should temporarily avoid the doctors, meditate, try a warm bath with epsom salts, and drink carrot juice twice daily; in a month, he may be re-tested for cancer.

Quicksilver follows this advice. When he is re-tested, there is no trace of any abnormality in his body. [12]

Quicksilver's doctor has no medical explanation. He tells the patient, "You've had a spontaneous remission."

Quicksilver confesses that he has had a consultation with Sagebrush. Dr. Knowsomething replies, "Placebo effect."

At lunch, the doctor raises the case with colleagues. "I thought the AMA ran these people out of business a hundred years ago," one doctor replies. Another says: "How can you allow a patient to visit a quack?" A third says: "What about respecting the patient's capacity for decision-making? Shouldn't the choice to see Sagebrush be the patient's, not the physician's or the state's?" A fourth: "It worked, didn't it? What if he'd forgone the healing, and died on the operating table? Who's responsible then?" A fifth: "What are you, a scientist, or a mystic? Tumors have a physiological and biochemical reality; Sagebrush's claim that `energy' flows from his hands has no basis in reality." The department chairman says: "Allowing Sagebrush to see Quicksilver raises two specters: first, the patient wastes his money on a fraud; second, the patient relies on the healer and thus evades the necessary medical treatment. I'd better consult our attorney and draft a policy statement."

2. Sagebrush's Peril

Quicksilver's dilemmathe choice between a risky medical procedure and an uncharted alternativeis compounded by Sagebrush's peril, the risk of prosecution for "practicing medicine" unlawfully, a felony in many states. State statutes typically define "practicing medicine" as encompassing "diagnosis," "prescription," "operation," and "treatment" for "any human injury or disease." [13] Sagebrush may well wonder at what point he has "practiced medicine," if all he has done is tell Quicksilver:

1. "In my view, your energy systems are low." ("diagnosis")

2. "Try a warm bath with epsom salts and drink carrot juice twice daily." ("prescription")

3. "I'm running energy through your abdominal region to reduce the tumor." ("operation")

4. "This procedure should do the trick." ("treatment")
Assume there is no fraud or duress; Sagebrush makes no claims, promises or threats. Should the law criminalize Sagebrush's behavior and deprive Quicksilver of the opportunity to seek such treatment? Does, or should, it matter whether Sagebrush prescribes remedies contrary to the doctor's advice, for instance, if Sagebrush tells his client, "Don't take your heart medication, it's poison?" Would it matter if Dr. Knowsomething had referred Quicksilver, saying, "There's nothing I can do; why don't you go see Sagebrush, a healer who lives about fifty miles down the highway?" Finally, should it matter that Quicksilver is out of optionsthat medical treatment may mean death?

3. Their Mutual Refuge

Both Sagebrush and Quicksilver could take refuge in God. The First Amendment to the United States Constitution protects the "free exercise" of religion. [14] The wide berth granted to "religion" [15] might well allow Sage brush to practice his craft, whether he employs shape-shifting, voodoo, or animal sacrifice. [16] Indeed, some state statutes explicitly exempt religious practices from the definition of "the practice of medicine." [17]

However, to view Sagebrush's act as "religious" makes Sagebrush a "faith healer," "shaman," [18] or perhaps, a "witch doctor." A religious healer, while honored in many cultures, is often dismissed in the West. [19] We tolerate the free expression of religion precisely because it is simply that an expression of personal belief. To credit Sagebrush with a miracle is to relegate the entire experience to the realm of mystery. One takes the truth of this exchange on faith or not. One takes Sagebrush's craft seriously or not. It is all a matter of personal preference, of one's own belief system. [20]

On the other hand, if Sagebrush is doing more than "laying on hands", if he is employing a therapeutic technique of potential benefit to future patients, one that implicates a physiological reality, then relegating Sagebrush's work to the realm of faith, on one hand, or banning it outright, on the other, requires reexamination. If the touch of Sagebrush while it employs no scalpel, dispatches no pharmacological agent, and operates solely on touch ameliorates Quicksilver's disease, then we must reevaluate our foundational assumptions about the way the law defines "medicine."

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B. The Paradigm Shift

1. The Nature of a Paradigm

A paradigm is a shared set of assumptions about the world, by which individuals define the parameters of their reality and their investigation of this reality. [21] Problems and methods outside the paradigm are denied or explained away. [22] A paradigm gains acceptance when it solves problems more readily than competing paradigms. [23] However, a paradigm can insulate a community from problems outside the paradigm, simply because these problems cannot be stated in the terms the paradigm supplies. [24]

Those who follow the paradigm find acceptance within the community, since they are committed to the consensus reality. [25] On the other hand, those who oppose the paradigm or who define problems or articulate solutions outside the paradigm, are deemed suspect, since their method implicitly attacks the foundational order. [26] For this reason, the shift from one paradigm to another generally occurs by revolution rather than by accretion. [27]

According to Thomas Kuhn, paradigm shifts exhibit the following steps: awareness of anomaly, observational and conceptual recognition, and finally, change of paradigm categories and procedures, often accompanied by resistance. [28] Kuhn found that those who challenge the old paradigm are either young or new to the field. [29] Being uncommitted to the traditional rules of the old paradigm, they are more "likely to see that those rules no longer define a playable game and to conceive another set that can replace them." [30]

2. The Medical Paradigm

The medical model, as practiced by Western physicians, views disease as a biochemical phenomenon that can be diagnosed through technology and treated, where possible, according to scientifically tested mechanisms. This model came of age in the late-nineteenth and early-twentieth century, when Newtonian physics and Cartesian dualism dominated intellectual thought, [31] and, in its emphasis on the power of science and reason, draws on these two systems. [32]

Newtonian physics views the universe as consisting of fundamental, irreducible building blocks made of matter. [33] According to Newtonian theory, the motions and interactions of all material bodies obey a few, simple laws. [34] The universe is an elaborate, immense clock, following a pre-determined course. [35] The system is rational and follows basic laws. [36]

Cartesian dualism asserts that bodies exist in space, subject to mechanical laws, while minds exist elsewhere. [37] According to this view, an individual lives through "two collateral histories, one consisting of what happens in and to [the] body, the other consisting of what happens in and to [the] mind. The first is public, the second private." [38] Cartesian dualism dichotomizes the "outer" world, objective and subject to scientific testing, and the "inner" world, deeply subjective and inaccessible to others. [39] Cartesian dualism thus opposes mind and matter, confining each to an isolated, independent realm. [40]

The medical model, following Newtonian physics and Cartesian dualism, views the body as a machine that can be analyzed in terms of its parts. [41] In this vein, medicine tends to treat disease without considering the body and mind as a unit. [42] Medicine reduces disease to an outside invader that preys upon a particular part of the body; treatment, accordingly, consists in attacking the invader. [43] As a result, patients often find themselves sur rounded by a bewildering array of charts, monitors and tubes, being spoken about rather than to, and witnessing their body as the object of debate among strangers, in an incomprehensible scientific language. [44]

3. Holistic Healing

Holistic healing refers to a paradigm of health care that "recognize[s] the importance of considering the condition of the patient as well as the disease . . . [and] advanc[es] the theory that the psyche and the soma, the mind and the body, are one." [45] In holistic healing, "all parts of the system, body, mind, spirit, environment, society, are interrelated and interact" to produce health or disease; illness "reflects an imbalance between the individual and the wider world." [46] Chinese medicine (including acupuncture), [47] homeopathy, [48] naturopathy, [49] herbal and nutritional remedies, hypnosis and mind/body therapies, and other forms of "alternative medicine" represent holistic approaches to treating disease.

Touch healing, which involves healing through touch, is a particular mode of holistic healing. In touch healing, the healer's touch may, but does not always, involve actual contact with the patient's physical body. Rather, "non-contact touch" may direct healing toward the human energy field, described as surrounding the human body. [50] In a study of premature babies at Stanford Children's Hospital, non-contact touch has been described as follows: "Cupping one hand above the body's head, [the nurse] slowly sweeps the other hand down the baby's body, above the surface of the blanket". [51]

According to Chinese medicine, non-contact touch transmits chi, or "universal energy," to the client. [52] Other healing traditions likewise describe a transmission of energy, the nature of which has not yet been scientifically quantified. ]53] In any event, touch healing describes disease as the ultimate result of an imbalance or a distortion in the energy field. [54] Touch healers perceive the field visually, as well as kinesthetically, by turning attention toward interior experience and focusing on "latent senses." [55] The shift in perception also has been described as a natural state of expanded awareness, [56] heightened intuitive capacity, [57] and using non-ordinary states of consciousness to access information. [58]

Numerous forms of touch healing are practiced in this country, including "pranic healing," [59] Reiki, [60] qi gong, [61] biomagnetics, [62] Taido [63], and other systems. [64] One form of touch healing, taught by the American Holistic Nurses Association to health professionals nationwide, is called "healing touch." [65] A related modality is known as "touch for health" ("TFH"). [66] Among physicians using touch healing, one refers to "the use of `healing energy' through touch." [67] An obstetrician and gynecologist refers to "holoenergetic healing." [68] A third physician uses the term, "Era III medi cine." [69] The best known form of touch healing is that developed by Dolores Krieger, called "therapeutic touch." [70] Therapeutic touch is "not done within a religious context, nor is the healing or helping that occurs considered to be a function of the faith of the healer and/or the client." [71] Although therapeu tic touch is part of the nursing curriculum at New York University, it is not strictly a nursing protocol. [72] An estimated 30,000 individuals practice therapeutic touch in the United States. [73] Clients report "feelings of deep caring, empathy, and emotional support" from the experience of therapeutic touch. [74] Clients also report physiological changes, such as being able to swallow without choking, experiencing fewer muscle spasms, and being able to move more freely. [75] Typically, therapeutic touch creates a "significant relaxation response" in patients, as evidenced by decreased anxiety, more relaxed breathing patterns, decreased heart rate, and increased alpha and theta brainwave activity. [76] When fathers were taught to apply therapeutic touch to their wives during childbirth, the fathers became more positive about the pregnancy and their responsibilities. [77]

At present, much evidence about touch healing, including therapeutic touch, is in anecdotal form. For example, one physician has described her use of the human energy field in practice. [78] A psychiatrist has written about his perception and use of the energy field, [79] and a nurse has provided anecdotal evidence regarding the efficacy of Healing Touch when used in conjunction with standard medical treatment. [80] Scientific studies currently are being collected by the Office of Alternative Medicine. [81] Study began in 1977 with the work of Dr. Valerie Hunt (University of California, Los Angeles) who, using an electromyograph, detected an electrical field radiating around the human body, with frequencies between 100 and 1600 cycles per second (cps). [82] When Hunt converted the electrowaves into a visual pattern through an oscilloscope, she found that the pattern correlated with colors the healer had detected in the client's field. [83]

In a 1990 study involving fourteen healers and clients, the investigators observed a change in the oxygen-hydrogen bonding of water in the infrared spectrum. [84] The authors speculated that this shift in bonding might correlate to a positive change in the body's immune response. [85] They also collected studies from researchers at McGill University, Rosary Hill College and Roswell Park Cancer Hospital, the University of California, Berkeley, and St. Joseph's University reporting increased vitality in healer-treated sub-populations of cell colonies, enzymes, and seedlings in comparison with controls. [86]

In another study, Dolores Krieger applied therapeutic touch to subjects diagnosed with gastro-intestinal disorder, nervous exhaustion, metastatic cancer, endocrine imbalance, and a cataract. [87] After treatment, Kreiger discovered significant increases in both hemoglobin value and hematocrit ratio in a less than 24-hour period. [88] The controls showed no change. [89] Subsequent studies have suggested that therapeutic touch can alter EEG and EKG to induce deep relaxation, decrease anxiety and lessen headache pain. [90]

In a double-blind study examining the effect of therapeutic touch on the rate of surgical wound healing, [91] a physician made full-thickness dermal wounds on the arms of forty-four healthy subjects using a skin biopsy instrument. The instrument removed a precise, uniform, circular layer of cutaneous tissue, allowing an accurate measurement of wound perimeters. The subjects were neither informed that the effects of healing would be studied, nor were told which individuals were in a control group. [92] The double-blind protocol and other procedures were designed to rule out suggestion and the placebo effect. [93]

The subjects inserted their arms through a ten-inch circle in a door sealed with rubber materials that allowed easy entry of the arm, but did not allow the subjects to see to the other side of the door. The therapeutic touch practitioner then worked on healing the arms of the experimental group, without making physical contact, for five-minute intervals. [94] The wounds were measured on the first, eighth and sixteenth days. [95]

By the sixteenth day, thirteen of the twenty-three treated subjects were completely healed - wound size of zero. [96] None of the non-treated group were fully healed. [97] The treated group showed substantially less variation in wound sizes than the non-treated group (.73 versus 2.95 square millime ters). [98] The difference between the improvement rates for the treatment and non-treatment groups was found to be statistically significant for both days eight and sixteen. [99] The author concluded that non-contact therapeutic touch "is a highly effective healing treatment for full-thickness dermal wounds." [100]

A further study, reported in the same journal, involved the healer's effect on the motility (the rapidly changing parameters for movement) and growth (a slowly changing parameter) of bacterial cultures. [101] The researcher proposed to explore whether "all living systems [are] connected in some fundamental manner . . . mediated by a real exchange of energy . . . [involving] consciousness." [102] The experimental results indicated that in the presence of a variety of chemical inhibitors, healer treatment produced significant growth and increase of motility in comparison with control cultures. The author concluded that the phenomenon of touch healing "is strong and persistent and can be replicated" and "implies the interconnection between living systems." [103]

Additional controlled studies have demonstrated effects on enzymes, cells in laboratory cultures, bacteria, yeasts, plants, animals, and humans. [104] These studies rarely find their way into traditional medical journals, perhaps because they are so contrary to the dominant paradigm. [105] In part, this may reflect the difficulty in correlating alternative modalities with Western technologies. [106] In part, the gulf between alternative practices and tradi tional medical journals reflects the century-old dichotomization of orthodox medicine and "quackery." [107] Finally, the gap may reflect orthodox medi cine's rudimentary understanding of the role of emotions in health care. [108] In any event, the premise of holistic healing generally, and touch healing in particular, that disease implicates both physiology and the energy field, is doubtless controversial to Western medicine. [109] Closer collaboration between physicians and alternative practitioners, including touch healers, would be appropriate to determine how a particular drug, surgery or other medical procedure affects the patient's energy field. [110] Indeed, a culture predicated on "doctor knows best" may evolve to one where the patient chooses a healing team, which might include, for example, in addition to the physician, an acupuncturist, a massage therapist, and a healer. [111] This augurs the kind of paradigm shift formulated by Kuhn, namely, a revolution in thinking, accompanied by great resistance.

Thus, while assuming to complement, rather than displace, conventional medicine, holistic healing challenges conventional ideas about medicine, much as Copernican astronomy challenged the unquestioned conviction of two millennia that the earth was the center of the universe. [112] Touch healing underscores the shift from the Newtonian and Cartesian models to the quantum perspective of a dynamic universe, where body and mind interrelate to produce health. [113] Finally, the holistic paradigm suggests that dismissing alternative healing practices outright as fraud, may be limiting, if not premature.

II. THE PRACTICE OF MEDICINE


A. State Regulation of Medicine

The regulatory system fairly reflects the dominant paradigm in its licensing scheme for health professionals. States are empowered, under their police power,[114] to prescribe the qualifications of who may practice medicine.[115] This includes the power to establish licensing boards that admit or exclude persons from the medical profession.[116] The justification for such regula tion is to prevent indiscriminate conduct by "unskilled and unlicensed practitioners" of the healing arts[117] and to protect the public from "the menace of the ignorant, the unprepared, the quacks and the fakers."[118]

No universal definition of the "practice of medicine" exists; each state has its own version. All state statutes, however, include some combination of the following: (1) diagnosing, preventing, treating, and curing disease; (2) holding oneself out to the public as able to perform the above; (3) intending to receive a gift, fee, or compensation for the above; (4) attaching such titles as "M.D." to one's name; (5) maintaining an office for reception, examina tion, and treatment; (6) performing surgery; and (7) using, administering, or prescribing drugs or medicinal preparations.[119] The sections below briefly describe some of the permutations.

1. Diagnosis, Treatment, Prevention, Cure

All states define the "practice of medicine," in part, by using such words as "diagnosis," "treatment," "prevention," "cure," "advise" and "pre scribe."[120] These words are usually used in conjunction with "disease," "injury," "deformity" and "mental or physical condition." For example, New York defines the "practice of medicine" as "diagnosing, treating, operating, or prescribing for any human disease, pain, injury, deformity or physical condition."[121] Similarly, Michigan includes "diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means."[122] The definitions tend to be broad in the extreme. For example, reading Michigan's statute literally, "relieving . . . a . . . complaint . . . by . . . advice" constitutes practicing medicine.[123] Simi larly, under the Arkansas statute, "suggesting . . . any form of . . . healing for the intended palliation" constitutes the "practice of medicine."[124]

2. Holding Oneself Out to the Public

Most states also include "holding oneself out to the public as a medical practitioner" in defining the "practice of medicine."[125] Some states de scribe this as "publicly professing" to assume duties incident to the practice of medicine, such as diagnosing, healing, and treating[126] or "publicly professing" to be a physician or surgeon.[127] Other states, such as Ha waii,[128] Minnesota,[129] New Mexico,[130] Oregon, [131] Vermont,[132] and Wyoming,[133] also include "advertising" that one is a physician or otherwise authorized to practice medicine in the state.

In Florida,[134] New York,[135] and North Carolina, [136] the courts, and not the legislatures, have included holding oneself out as a physician in the definition of "practicing medicine." In Louisiana, an appellate court has held that "practice of medicine" does not mean actually diagnosing and treating diseases, but rather, holding one's self out to the public as being engaged in the business of diagnosis and treatment.[137] By finding that "holding one's self out to the public" can suffice as "practicing medicine," irrespective of actual diagnosis or treatment, legislatures and courts have further broadened the definition's sweep.

3. Intending to Receive a Fee, Gift, or Compensation

A number of states define the "practice of medicine" as diagnosing and treating "with the intention of receiving compensation, or a fee or gift."[138] In some of these states, the courts have incorporated the requirement of a fee within the definition of the "practice of medicine."[139] By way of compari son, the Hawaii, Louisiana and Utah statutes specifically state that one can be held to practice medicine irrespective of compensation.[140]

4. Attaching a Title

In about half the states, attaching to one's name one or more of the following constitutes the "practice of medicine:" "doctor," "doctor of medicine," "doctor of osteopathy," "physician," "surgeon," "physician and surgeon," "Dr.," "M.D.," "D.O.," or other words or abbreviations to indicate or induce others to believe that one is licensed to practice medicine and engaged in the duties characteristic of the "practice of medicine."[141]

The Delaware statute also includes using the word "healer" in connection with one's name.[142] In Nebraska, Christian Science healing has been held to constitute the "practice of medicine."[143] Ohio, Oklahoma, and Vermont include using the word "Professor" in connection with the person's name.[144] In Maine and Ohio, the use of certain words or letters is prima facie evidence of intent to represent one's self as engaged in the "practice of medicine or surgery."[145] For example, one is guilty of practicing medicine without a license if one uses "M.D." in a manner that induces a belief that the individual is engaged in medical practice; the prosecution is not required to make a further showing that the defendant has, in fact, treated patients.[146]

5. Maintaining an Office

In many states, maintaining an office to receive, examine and treat patients constitutes practicing medicine.[147] In Indiana, maintaining a "place of business for the reception . . . of persons suffering from . . . conditions of the body or mind" suffices.[148] Tattooing solely for artistic purposes has been held to constitute medical practice.[149] In Texas, maintaining an office to treat people was held to constitute the practice of medicine, whether or not defendant claimed to be a physician or medical practitioner.[150] In Utah, maintaining an office or place of business for the purpose of attempting to "diagnose, treat, correct, advise . . . for any human . . . condition . . . real or imaginary" constitutes practicing medicine.[151]

6. Performing Surgery

Approximately half of the states include performing surgery or operation in the definition of practicing medicine.[152] Four use phrases such as "sever or penetrate the tissues of human beings."[153] Although Massachusetts does not include surgery or operation in its statute, the Supreme Judicial Court has held that the "practice of medicine in any of its branches" includes surgery and setting fractured bones.[154] Of the various statutory definitions, per forming surgery is perhaps the narrowest and most tailored to prohibiting untrained medical practitioners.

7. Using, Administering or Prescribing Drugs

More than half the states include the use, administration or prescription of drugs or medicine in the "practice of medicine."[155] However, only a few actually define "drug";[156] these adopt a broad definition. For example, Indiana defines "drug or medicine" as:


any medicine, compound, or chemical or biological preparation intended for internal or external use of humans, and all substances intended to be used for the diagnosis, cure, mitigation, or prevention of diseases or abnormalities of humans, which are recognized in the latest editions published of the United States Pharmacopoeia or National Formulary, or otherwise established as a drug or medicine.[157]
The North Carolina Supreme Court has defined "drug" as "any substance used as a medicine or in composition of medicines for internal or external use" and has defined "medicine" as "any substance or preparation used in treating disease."[158] New Mexico's statute includes not only prescribing any drug or medicine, but also "offering or undertaking to give or administer any dangerous drug or medicine for the use of any other person, except as directed by a licensed physician."[159]

8. Miscellaneous Definitional Provisions

Maryland includes ending a human pregnancy in its definition of the "practice of medicine."[160] Delaware's statute[161] and New York's case law include diagnosing of diseases of any person, including dead persons.[162] Treatments such as manipulation expressly constitute the "practice of medicine" in Arkansas,[163] Maine,[164] and South Carolina.[165] In Ha waii, the "practice of medicine" includes "hypnotism," as well as "the use of . . . any means or method . . . either tangible or intangible."[166] Again, the statutes are drafted broadly to reflect the presumption that medicine occupies the field of healing.

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B. Regulation of Other Health Professionals

In contrast to broad "practice of medicine" statutes, statutes defining allied health professionals are defined narrowly, with express prohibitions against "practicing medicine."[167] Allied health professionals fall into three groups:


1. Specialists whose practice generally would be considered within the parameters of medical orthodoxy (such as nurses and dentists);

2. Assistants to physicians, and specialists, typically under physician supervision (such as physician assistants and respiratory therapy technicians); and

3. Specialists whose practice might fall within the realm of "alternative," "unconventional," or "unorthodox" medicine (such as chiropractors and acupuncturists).
While physicians have unlimited authority to "diagnose" and "treat," allied health professionals have a limited range of activity, and in many cases, can practice only under physician supervision. For example, in California, the "practice of midwifery" is defined as the "furthering or . . . undertaking by any licensed midwife, under the supervision of a licensed physician and surgeon who has current practice or training in obstetrics, to assist a woman in childbirth so long as progress meets criteria accepted as normal."[168] Midwives are licensed to "attend cases of normal childbirth and to provide prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn," all under the "supervi sion of a licensed physician and surgeon."[169] The statute requires mid wives to refer any complications to a physician immediately and prohibits assisting childbirth by "any artificial, forcible, or mechanical means."[170] Further, "[a] midwife is not authorized to practice medicine and sur gery."[171] Thus, the statute both limits the practice of midwifery and makes midwives dependent on, and subordinate to, physicians.

The findings in section 1 of the Licensed Midwifery Practice Act of 1993 provide an epidemiological justification for licensing midwifery that may provide some parallels for licensing alternative practitioners. These include the observation that "[o]ver 40,000 babies die every year in the United States, many 108q. . . as a result of being born severely underweight"; that this is a "preventable tragedy and a national disgrace"; that each woman has a "fundamental right to receive proper prenatal care," and to play a "central role" in such care, and that "social, emotional, and psychological factors are decisive" in such care; that low-income pregnant women face a shortage of physicians and surgeons; that in "[f]ive nations with the lowest prenatal mortality rates," midwives attend seventy percent of all births; and that non-nurse midwifery provides comprehensive, cost-effective "perinatal care that lowers perinatal morbidity and mortality rates."[172] The findings do not speak of "fraud," or of the potential consequences of patient susceptibility to unscrupulous practitioners, but rather emphasize the patient's right to receive proper care, the emotional and psychological components of such care, and the unavailability of physicians and surgeons to provide such care.[173] The findings make no demand for proof of therapeutic efficacy but instead observe that cultures using midwives have reduced prenatal mortality rates.

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C. Limitations on the Regulation of Medicine

Courts have justified extensive government regulation in the area of medical health as a proper exercise of the states' police power,[174] admitting few constitutional limitations in the name of patient choice. Thus, although the courts have found constitutional protection for such quasi-medical matters as contraception,[175] abortion,[176] and the right to be disconnected from artificial life support,[177] they have shown little enthusiasm for either a constitutional or common-law right to select the treatment of choice.

1. Free Exercise Limitations

The courts generally have found individual religious objections insufficient to override the governmental interest in protecting public health. For example, the United States Supreme Court has held that the government may require vaccination, even if this violates an individual's religious beliefs.[178] Similarly, courts have found compulsory vaccination constitutional as a precondition to attendance at public school.[179] Courts have held that the state may mandate medical treatment even if this violates the religious beliefs of the child or parent.[180]

2. Due Process Limitations

Courts generally have found limited Fourteenth Amendment due process restrictions on government regulation of medical practice. The United States Supreme Court addressed due process restrictions in Cruzan v. Director, Missouri Department of Public Health.[181] Nancy Cruzan was in a persis tent vegetative state after being severely injured in an automobile acci dent.[182] Her parents, the plaintiffs, sought a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment.[183] The Supreme Court of Missouri held that the parents lacked authority to terminate treatment, in the absence of clear and convincing evidence that Cruzan wished to have the life-sustaining treatment withdrawn.[184] The United States Supreme Court affirmed.[185]

The court noted that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment, including lifesaving hydration and nutrition.[186] An incompetent person, however, is unable to make an "informed and voluntary choice"; the choice must be made by a surrogate.[187] The state may assert its interest in preserving life, weighed against the individual's constitutionally protected interests, by adopting a "clear and convincing" standard of proof to govern judicial proceedings determining the incompetent patient's choice.[188] Thus, the court held, Missouri's statute satisfied constitutional standards.[189]

In addition to the right to refuse medical treatment, courts have found that, in some circumstances, patients have a constitutional right to treatment. For example, the Middle District of Alabama held that where a non-dangerous patient is involuntarily civilly committed to a state mental hospital, the patient has a constitutional right to "such . . . treatment as will [help him] to be cured or to improve his . . . mental condition."[190] Similarly, the Fifth Circuit held "that a person involuntarily . . . committed to a state mental hospital has a constitutional right to receive such individual treatment as will give him a reasonable opportunity to be cured or to improve his mental condition."[191] However, these cases address the right to receive treatment, not to a choice among treatments, and do not establish a Due Process right to select the treatment of choice.

3. Privacy Limitations

Where plaintiffs have challenged government regulation of medical practice as violating a constitutional right to privacy, courts have tended to defend the regulatory process. Courts typically reject the argument that the right to privacy grants patients the right to select, over the objections of physicians or a regulatory authority, a particular mode of treatment.

a. United States v. Rutherford

In United States v. Rutherford, a group of terminally ill cancer patients sued to enjoin the federal government from interfering with interstate transportation of laetrile, a drug not approved as "safe and effective" under the Federal Food, Drug and Cosmetic Act (the "Act").[192] The district court held that by denying cancer patients the right to use a non-toxic substance for their personal health, the Food and Drug Administration ("FDA") Commis-sioner infringed on the patients' constitutionally protected privacy inter ests.[193]

The Tenth Circuit, bypassing the constitutional issue, held that the "safe and effective" requirement did not apply to terminally ill cancer patients, who would "die of cancer regardless . . . ."[194] The court held that laetrile could be provided to cancer patients certified as terminally ill, but only by intravenous injection under a doctor's supervision.[195] In addition, the court directed the FDA to promulgate regulations "as if" the drug had been found "safe and effective."[196]

The Supreme Court reversed and remanded, observing that the Act makes "no special provision" for terminally ill patients.[197] On the contrary, according to the Court, the legislative history to the 1938 Act indicated Congressional concern that "individuals with fatal illnesses, such as cancer, should be shielded from fraudulent cures."[198] The Court found similar concerns reflected in the passage of the 1962 amendments and expressed by the FDA in its implementation of the Act.[199] The Court expressly indicated its reluctance to displace a "longstanding administrative policy that comports with the plain language, history, and prophylactic purpose of the Act."[200]

The Court rejected the district court's notion that the statutory standards could have "no reasonable application to terminally ill patients."[201] It swept away the constitutional privacy argument with the brush of federalism:

Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy.[202]

The Court concluded that Congress reasonably could have intended to "shield terminal patients from ineffective or unsafe drugs" such as laetrile.[203]

On remand, the Tenth Circuit addressed the constitutional issue, namely, whether the FDA had infringed upon plaintiffs' privacy interests by denying them access to laetrile.[204] The court held that a patient's decision to have treatment or not is a constitutionally protected right, but that the patient's "selection of a particular treatment, or at least a medication, is within the area of governmental interest in protecting public health."[205] The court found that the "premarketing requirement of the . . . Act was a [valid] exercise of Congressional authority to limit the patient's choice of medication."[206] Thus, Rutherford suggests that patients do not have a constitutional privacy right to select a treatment of choice over the objections of a governmental authority such as the FDA.[207]

b. Andrews v. Ballard

In Andrews v. Ballard, a group of patients challenged rules established by the Texas Board of Medical Examiners proclaiming acupuncture to be the "practice of medicine."[208] Plaintiffs argued that the "rules effectively eliminate[d] the practice of acupuncture in Texas, thereby depriving them" of the constitutional right to obtain acupuncture treatment.[209]

The district court agreed that plaintiffs had a "constitutional right, encom passed by the right of privacy, to . . . obtain acupuncture treatment," and held that "the challenged rules [that] effectively deprive[d] them of that right . . . were not necessary to serve the state's interest in protecting [the] patients' health," and were unconstitutional.[210] The court described the right to privacy as an expression of "the sanctity of individual free choice and self-determination as fundamental constituents of life."[211] The court found in prior Supreme Court privacy cases two criteria marking decisions protected by the constitutional right to privacy: first, they must be "personal decisions," and second, they must "profoundly affect one's development or one's life."[212] Medical decisions, like decisions relating to "`marriage, procre ation, contraception, family relationships, and child rearing and education,'" are "to an extraordinary degree, intrinsically personal."[213] Medical deci sions can "produce or eliminate physical, psychological, and emotional ruin, . . . destroy one's economic stability," determine whether one will experience a "life of pain or pleasure," and for some, make the "difference between life and death."[214] This includes the decision to obtain acupuncture.[215]

The court noted that many individuals, including one of the plaintiffs, seek acupuncture only when Western medicine fails them.[216] Acupuncture is their "last hope;" denying them the treatment may mean condemning them to "endure without hope the misery that is [there]."[217] The court criticized the Tenth's Circuit's distinction in Rutherford between refusing or choosing treatment, and selecting the kind of treatment, since as with laetrile, denying patients the right to select a particular treatment may be equivalent to denying them the right to be treated.[218] Thus, the court found, the decision to obtain acupuncture is protected by the constitutional right to privacy.[219] The court next asked whether the challenged rules effectively violated the right of privacy by significantly interfering with the decision in question.[220] If not, the rules needed only be "`rationally related' to a `constitutionally permissible' purpose"; if so, the rules had to be "`narrowly drawn'" to serve a "`compelling interest.'"[221] The court found that since the rules did impose a significant burden on the decision to obtain acupuncture treat ment,[222] it had to determine whether the rules were narrowly drawn to serve a compelling interest.

The state interest at issue, protecting patients' health, arguably was "compelling."[223] However, the court found that the rules were not "nar rowly drawn" to serve this interest.[224] The rules' restriction of practicing acupuncture to licensed physicians was based on a finding that acupuncture is an "experimental procedure, the safety [and effectiveness] of which have not been established."[225] According to the court, this finding was adopted by a board of medical examiners that lacked expertise in, and did not hear testimony or receive evidence from, experts concerning acupuncture.[226] Moreover,


acupuncture has been practiced for 2000 to 5000 years. It is no more experimental as a mode of medical treatment than is the Chinese language as a mode of communication. What is experimental is not acupuncture, but Westerners' understanding of it and their ability to utilize it properly.[227]
Even if acupuncture were an experimental procedure of unproven safety and effectiveness, however, the court found that the challenged rules were not narrowly drawn to protect patients from any associated dangers.[228] Defendants cited three dangers from permitting nonphysicians to practice acupuncture: misdiagnosis, improper administration of acupuncture, and delayed remedy of complications arising during the acupuncture treatment.[229] In response, the court observed that the danger of misdiagnosis could be remedied by requiring that patients consult with physicians prior to obtaining acupuncture treatment; that the danger of improper placement of needles was not remedied by restricting the practice of acupuncture to those least schooled in the art, namely, physicians; and that the danger of delayed treatment of complications could have been remedied through less drastic means, such as requiring acupuncturists to take courses in emergency medical treatment, or requiring that acupuncturists have ready access to a physi cian.[230]

The court noted that it was not striking the challenged provisions because they were "unwise, improvident, or out of harmony with a particular school of thought," but because they were unconstitutional.[231] Finally, the court suggested a variety of constitutional alternatives: the legislature could grant acupuncturists full independent status; it could allow independent practice but require diagnosis by or referral from physicians; it could establish minimum standards of skill and knowledge for practitioners; or, if feasible, it could require acupuncturists to practice under the supervision and control of physicians.[232]

The Fifth Circuit's approach in Andrews has not been universally fol lowed.[233] For example, in New York State Ophthalmological Society v. Bowen, ophthalmologists, their patients, and professional associations brought a class action challenging the constitutionality of a provision of COBRA (the Consolidated Omnibus Budget Reconciliation Act of 1985) which prohibited Medicare billing for an assistant cataract surgeon, unless pre-approved by an insurance carrier or designated state Peer Review Organization.[234] The D.C. Circuit rejected the notion that the "constitutional right to privacy . . . protects all choices made by patients and their physicians or subjects to `strict scrutiny' all government interference with [their] choice of treatment."[235] The court noted the difficulty in determining what kinds of medical decisions should be accorded "the same high degree of solicitude now reserved for first trimester abortions."[236] The court stated that it did not rule out the possi-bility that a particular medical decision, such as a choice regarding eyesight, might be entitled to constitutional protection.[237] In such a case, however, the plaintiff would need to show "medical necessity," and the "unavailability of equally effective alternative therapy."[238]

Judge Williams, concurring, observed that the sole interest advanced in favor of the statutory provision restricting individuals' ability to have a second surgeon present in a cataract operation, was to prevent individuals from "being harmed by making unwise expenditures of their own money . . . ."[239] "Thus, the asserted state interest [was] not only paternalistic," but also was limited to protecting the pocketbook of the supposed beneficiaries.[240] Judge Williams criticized the majority's requirement of "medical necessity" as infringing on the patient's autonomy interest.[241] While agreeing that such an interest might not rise to the level of constitutional protection, Judge Williams argued that the patient should not be prohibited from investing in a health measure merely because of differing views on its incremental value.[242]

4. Limitations Based on "Informed Consent"

Justice Cardozo first expressed the doctrine of informed consent in Schloendorff v. Society of New York Hospital: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . ."[243] The doctrine protects the patient's "bodily inte-grity,"[244] by requiring the physician to disclose all information material to the patient's decision to submit to a particular medical procedure.[245]

Informed consent provides a non-constitutional, common-law basis for the right to refuse treatment.[246] While informed consent does advance patient autonomy,[247] the doctrine does not satisfactorily protect the patient's freedom of choice.[248] For example, most states require the kind of disclo sure a reasonable medical practitioner would make under the circum-stances.[249] Although some courts and legislatures require disclosure of alternative treatments,[250] "alternative" in this context means "feasible and available" conventional medical treatments.[251] Thus, for example, a physician would not be required to disclose the possibility of treating a migraine headache through hypnotherapy, acupuncture, or touch healing, or a combination of the three, rather than through a prescription drug.[252] Similarly, a physician might not be required to disclose the possibility of a myomectomy, an operation in which the fibroid tumor is removed while the ability to have children is preserved.[253]

Moreover, the informed consent doctrine inadequately protects patient autonomy in at least three additional respects: first, it often does not protect the patient from non-disclosures in cases that do not involve physical contact;[254] second, courts often use informed consent to protect physical well-being, but not patient choice;[255] and finally, under the informed consent doctrine, certain outcomes are not recognized as injuries.[256] Thus, as presently developed by the courts, informed consent provides an inadequate basis for the recognition of a right to choice of treatment.

5. Limitations Based on Assumption of Risk

Assumption of risk, by recognizing the patient's responsibility for some treatment choices, and by protecting the physician whose patient chooses alternatives, could expand the right to alternative treatment choices. For example, in Schneider v. Revici, a patient, after learning that a lump was found in her breast, refused a biopsy and instead consulted a physician for unconventional treatment; when the treatment failed to succeed, and in fact resulted in an increase in the size of the tumor, the patient sued.[257] Because the patient had signed a consent form assuming the risk of injury for the unconventional treatment, the court held that the jury could consider assumption of risk as a total bar to recovery:

[W]e see no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment . . . . [W]e believe that an informed decision to avoid surgery and conventional chemotherapy is within the patient's right "to determine what shall be done with his own body."[258]

Similarly, in Shorter v. Drury, the patient, a Jehovah's Witness, bled to death after refusing a blood transfusion when a medical procedure perforated her uterus.[259] Shorter had signed a document releasing the hospital "from any responsibility whatever for unfavorable reactions or any untoward results due to my refusal to permit the use of blood or its derivatives."[260] The jury found the physician negligent, but reduced damages by seventy-five percent based on Shorter's assumption of the risk that she would die from bleed ing.[261] The court upheld the release, since the form did not exculpate the physician from his own negligence, but only from risks created by the patient's refusal to accept blood transfusions.[262] Both Schneider and Shorter frame the patient's decision to pursue unconventional treatment in terms of assumption of risk, shifting the focus from physician decision-making to patient choice.[263] Thus, assumption of risk may provide a basis for the patient's right to select unconventional treatment modalities, even over the objections of the physician or of prevailing medical norms.

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D. Prosecution of Alternative Healers

Just as courts have limited constitutional and common-law support for a right to choose treatment, so they have affirmed convictions of healers for unlawfully practicing medicine. For example, in an early case, Smith v. People, a defendant who purported to cure diseases by laying on hands was convicted for "practicing medicine" without a license, even though he did not tell patients what was the matter with them, practiced out of a couple of living rooms, and used only his hands to employ a "gift from the Almighty."[264]

The court rejected defendant's claim that he was engaged in the free exercise of religion under the First Amendment and was thus within the statutory exemption for practicing "religious tenets."[265] The court stated that the First Amendment did not "authorize one under the cover of religion or a religious exercise to go into healing commercially for hire."[266] It noted that defendant used the title "Healer" to indicate that he was engaged in the business of treating the sick.[267] The court further emphasized that a public health statute must be construed liberally:


As a protection to the public health, it requires those engaged in the business of curing the sick to possess certain qualifications . . . . One form of examination is required of all sorts of healers. All applicants must be examined in anatomy, physiology, chemistry, symptomatology, toxicology, pathology, surgery, and obstetrics.[268]
The Smith court read the "practice of medicine" to mean "the practice of the healing art commercially, regardless of the curative agency employed."[269] Expressing a technocratic orientation characteristic of the twentieth century and the medical paradigm,[270] the court's reading is somewhat overbroad, given the licensed dieticians, psychologists, social workers, physical/massage therapists, acupuncturists, chiropractors, other health professionals,[271] and even health food store proprietors, who do, in some fashion, diagnose and treat disease without the training of licensed physicians. Nonetheless, Smith is typical of decisions throughout the century in other jurisdictions.[272]

Judicial antipathy to alternative practitioners is reflected in cases such as People v. Amber, in which defendant, who practiced acupuncture, was indicted for the unlicensed "practice of medicine."[273] In Amber, defendant argued that the statutory prohibition on the unlicensed "practice of medicine" referred to "Western allopathic medicine" and did not encompass systems such as Chinese acupuncture, which differs in its "philosophy, practice and technique."[274] The court disagreed, holding that diagnosis constitutes any "`sizing up' or a comprehending of the physical or mental status of a patient."[275] In sweeping language, the court asserted:


[A] statute intended to regulate, limit or control the diagnosis and treatment of ailments must necessarily be broad enough to include the gamut of those known, whether or not recognized and even those not yet conjured.[276]
The court emphasized that the "patient seeks treatment, not out of curiosity but only because he is suffering pain . . . [and] can expect the anticipated relief from the [healing methodology]."[277] Thus, even determining "the existence of a disharmony brought about by the disequilibrium of Yin and Yang" constituted a "diagnosis" under the statute.[278] Such a determination required expertise, specifically, "to palpate the twelve pulses in order to read the condition of the twelve organs and thus determine which of the twelve meridians must be used . . . [to restore] the vital essence of `ch'i'" or vital energy.[279] The court also noted that a practitioner need not use any particular language or mention a specific disease to make a "diagnosis" under the statute.[280] Thus, the court denied defendant's motion to dismiss the indictment.[281]

The court's decision in Amber is marked by its breadth and scope, affirming the medical profession's monopoly over health care, and asserting that any healing modality, present or future, must come within the ambit of "medicine."[282] By defining "diagnosis" as any "sizing up" of a client's condition, including the relative balance of yin and yang, the court sweeps even the most general assessments of health under the statute's rubric.[283] Thus, judicial opinions treating alternative practitioners reflect a paradigm of physician dominance.

III. THE "PRACTICE OF MEDICINE" IN HISTORICAL CONTEXT

As Thomas Kuhn suggests, new paradigms do not gain acceptance without revolution, precisely because the debate is conducted in terms supplied by the old paradigm.[284] The old paradigm runs as follows: (1) If you are afflicted, see a licensed physician; (2) because the source of all healing is the licensed physician, any non-physician you might wish to consult is either a fraud, a quack, or both, and in any event, is unlawfully practicing "medicine." The new paradigm, essentially, is this: (1) If afflicted, you may choose from among a menu of healing modalities; (2) healing is not exclusively within the province of the physicians; other healing modalities, not constituting fraud or quackery, can exist alongside medicine.[285]

The old paradigm is physician-oriented and institutionally driven, reflected in statutes that have scarcely changed in the past half-century;[286] the new paradigm is patient-centered[287] and an emerging reality in patient care.[288] To understand the endurance of the existing paradigm, one must examine its historical basis. This section will analyze the extent to which competition among healing professionals underpinned the call for licensing and estab lished the dominance of orthodox medicine.

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A. Licensing of Healing Professionals

At common law, the "practice of medicine" was neither defined nor regulated and unlicensed practice was not a crime.[289] In the early nine teenth century, however, physicians sought licensing laws.[290] The public regarded a license as a badge of honor, emphasizing "the importance of `character' rather than the mastery of a formal body of knowledge."[291]

New York was one of the earliest states to license physicians.[292] While the first colonial assembly of the province of New York met in 1683, and, according to T. Romeyn Beck,[293] first recorded legislation between 1691 and 1709,[294] only one provision related to the medical profession: "physi cians and chyrurgeons" were exempt from military duty.[295] In June 1760, the legislature passed an act "to regulate the practice of physick and surgery in the state of New York."[296] The preamble noted:


Whereas many ignorant and unskillful persons, in physic and surgery, in order to gain a subsistence, do take upon themselves to administer physick and practice surgery in the city of New York, to . . . endanger ing the lives and limbs of their patients, and many poor and ignorant persons, who have been persuaded to become their patients, have been great sufferers thereby. . . .[297]
The act prohibited "practice as a physician or surgeon" in the city of New York without first being "examined . . . approved of and admitted" by certain government officials, "taking to their assistance, for such examination, such persons, as they in their discretion shall think fit."[298] If approved, the candidate received a license to practice "physic or surgery, or both," throughout the province.[299] Any individual found practicing without the license would be fined five pounds.[300]

In 1792, the legislature enacted an updated version, with a preamble, Beck notes, giving "the same melancholy picture of the state of medical practice:"[301]


Many ignorant and unskillful persons presume to practice physic and surgery within the city and county of New York to the detriment and hazard of the lives and limbs of the citizens thereof.[302]
The statute set a higher standard, essentially requiring that practitioners, in addition to being examined, approved, and admitted by a licensing board, have studied with a "reputable physician" for at least two years if the individual graduated from college, and for three years otherwise.[303]

In 1797, the legislature passed the first act applying to the entire state. The act required an applicant to show evidence of having studied or apprenticed with reputable physicians or surgeons for four years.[304] Beck comments:


This law certainly reflects great honour on the framers of it. Its natural effect must have been to exclude many ignorant and presuming pretenders from the privilege of practicing in a licentious manner; and, at the same time, it laid the foundation for an improved race of junior physicians, who from the increased period of study, and the duties incident thereto, were calculated to exalt the standard of medical character.[305]
In 1806, the legislature passed a law to incorporate medical societies "for the purpose of regulating the practice of Physic and Surgery."[306] In 1807, the statute was amended to regulate the internal organization of the state medical society.[307] Henceforth, these societies would have the power to license the practice of medicine.[308]

The licensing laws were weakly enforced.[309] From 1806 to 1844 (with the exception of seven years), the only penalty for unlicensed practitioners was a prohibition on suing patients for fees.[310] After 1825, the support for open competition advanced by Jacksonian democracy brought the repeal of most state licensing statutes.[311] This lasted for approximately two decades; in the 1870's, most states reenacted their medical practice acts, this time leaving licensing authority in the hands of the legislature.[312]

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B. Consolidation of a Medical Establishment

Physician licensing originated in the drive to control lay practitioners[313] and evolved into the consolidation of a medical establishment. Early medical practitioners trained by apprenticeship.[314] They were not highly regarded.[315] A contemporary historian observed: "Few physicians among us are eminent for their skill. Quacks abound like locusts in Egypt."[316] The medical community was characterized by "factiousness."[317] Groups of physicians banded together to promote their own theories and therapies and condemn those of rivals.[318] They formed medical societies to consolidate prestige, power, and economic control over a patient base.[319]

By 1830, nearly every state in the Union had a medical society.[320] Most states acceded to lobbying and delegated licensing authority to the medical societies.[321] Existing medical schools responded by demanding that their graduates be licensed without further examination.[322] Legislatures again acquiesced; the result was a dual system where either the medical society or the medical school could grant a license to practice medicine.[323] As the licenses granted by medical schools gained prestige, candidates flocked to the schools; as a result, between 1840 and 1875, nearly fifty new institutions were established, many of dubious quality.[324] Most were "proprietary schools"privately owned medical institutions, with no affiliation to any university.[325] Graduates relied on bloodletting, purgatives and emetics, and blistering.[326] A contemporary physician remarked: "[W]hoever sends for a physician of this sort expects to be bled, blistered or vomited, or submitted to some other painful or nauseous medication."[327] Physicians who did not follow such "heroic" measures received their colleagues' condemnation. That was the paradigm.[328]

Ultimately, public rebellion against such practices gave rise to alternatives, most notably, Thomsonism, a movement for healing based on botanical preparations.[329] The founder, Samuel Thomson, attacked heroic medicine and advised patients to "depend more upon themselves, and less upon the doctors" by following the preparations indicated in his book.[330] Although Thomson himself distrusted institutionalization, his followers organized local "infirmaries" and founded a Thomsonian society in an attempt to create a professional monopoly.[331] The "regular" physicians, successors to "heroic" medicine, reacted by attempting to discredit Thomsonians and by suing Thomson and others for illegal practice.[332]

Over time, Thomsonism waned, and so-called "eclectic" physicians grew as new rivals to the so-called "regular" physicians.[333] The eclectics drew from Thomsonians, Native American doctors, herb doctors, and others for their medical practice.[334]

The greatest challenge to regular physicians came from homeopathy.[335] Homeopathy, founded by Samuel Hahnemann, a German physician with formal medical training, held that what causes disease in a healthy person will cure the disease in a sick personin other words, like cures like.[336] Hahnemann suggested that the patient be given whatever medicine would induce the same symptoms in a healthy person.[337] He believed extremely small doses were necessary, and formulated a system of radical dilution.[338] Hahnemann referred to regular medicine as "allopathic" because, unlike the "homeopathic" approach, regular medicine used remedies whose action was opposite to the symptoms caused by the illness.[339]

As homeopathy gained supporters in America, the regular physicians (or "allopaths") took steps to "purge" homeopaths from their ranks, including expulsion from medical societies, lawsuits, attacks in the medical literature, and attempts to turn public opinion against homeopathy.[340] Allopaths led a public campaign for improved medical education, scientific rigor, and protection against charlatans; however, economic and social motives underpinned the proclamations.[341] Indeed, the American Medical Associa tion ("AMA") was founded in large part to limit the influence of the homeo paths.[342] A critical part in this crusade was the AMA's first code of ethics, which prohibited regular physicians from consulting with "irregular practitioners."[343]

In response, homeopaths founded their own medical college, the Homeo pathic Medical College of Pennsylvania.[344] However, the AMA continued to seek ways to eliminate homeopaths from the practice of medicine.[345] This included a ban on discussing or reviewing homeopathic works in allopathic periodicals.[346] By the mid-1850's, homeopathic practitioners had been expelled from the medical society of every state except Massachusetts, which eventually succumbed in 1871.[347] In 1881, the AMA convention enacted a resolution prohibiting regular physicians from signing any diploma or certificate to any individual who intended to support and practice "irregular" medicine.[348]

With the elimination of homeopaths as their major competitors, the regular physicians (or allopaths) dominated the healing arts by the end of the nineteenth century.[349] Three additional factors solidified the consolidation of regular physicians into the establishment of a medical orthodoxy. First was the rise of scientific medicine.[350] Pivotal discoveries included the use of anesthesia in surgery (1842)[351] and the introduction of successful methods for disinfection in surgery (1865-1897).[352] Scientific discoveries enabled physicians to systematize diagnosis and to quantify the patient's condition.[353]

Second was the growing power of the AMA as the sole voice of American medicine.[354] In 1900-01, the AMA undertook a major reorganization, with the aim of becoming an institution "whose power to influence public sentiment will be almost unlimited, and whose requests for desirable legislation will everywhere be met with the respect which the politician always has for organized votes . . . ."[355] In 1903, the AMA invited homeo paths to join, provided they renounce their connection with homeopathic institutions and practices.[356]

Third was a report issued by Abraham Flexner of the Carnegie Foundation for the Advancement of Teaching, in conjunction with the AMA Council on Medical Education, in 1910.[357] The "Flexner Report"[359] While the Flexner report stimulated a major reform in medical education,[360] it also institution alized the allopathic bias against the "irregular" physicians.[361] In keeping with the Newtonian/Cartesian model, Flexner urged that medical students be "trained to regard the body as an infinitely complex machine."[362] The Flexner report also created a biomedical establishment where the AMA and medical licensing boards began to act in tandem. For example, in response to Flexner's observation that state licensing boards had the power to eliminate weak medical schools through stricter examination,[363] university medical schools began to collaborate with state licensing boards to improve standards.[364] The AMA Council on Medical Education joined in the collaboration, to the point where state licensing boards came to determine whether to honor a graduate's diploma based on the Council's recommenda tion.[365] The Council established a three-tier rating system for schools;[366] most states denied recognition to institutions designated "Class C;"[367] schools unable to receive AMA approval were forced out of existence.[368] The AMA thus "acquired a whip hand over the whole medical educational system."[369] As a result, between 1904 and 1915, ninety-two schools merged or closed.[370]

The greatest power of the Flexner report was its effect on foundation money: after the report, foundations would support only the AMA-approved schools.[371] For example, in 1913, the Rockefeller General Education Board gave $1.5 million to Johns Hopkins University and $750,000 to Washington University of St. Louis for chairs in pediatrics, surgery, and medicine; in 1921, the total endowment of the Hahnemann Medical College of Philadel phia was $325,000.[372] As a result of economic and social pressures, the three established homeopathic schools in Boston, New York and Philadelphia gradually converted into regular medical schools.[373]

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C. Reduction of "Healing" to "Medicine"

While technological innovations increased life expectancy and recovery from disease, the growing reliance on technology and medication radically transformed the experience of care. As control of medical education moved from private practitioners to an academic elite,[374] a system of patient choice yielded to one of physician dominance.[375] The AMA ratified the notion of distance between doctor and patient in its first code of ethics:


A peculiar reserve must be maintained by physicians toward the public in regard to professional matters, and as there exist numerous points in medical ethics and etiquette through which the feelings of medical men may be painfully assailed in their intercourse which each other, and which can not be understood or appreciated by general society, neither the subject-matter of such differences nor the adjudication of the arbitrators should be made public . . . .[376]
The emergence of a "silent world of doctor and patient" signalled the demise of patient self-determination.[377] Indeed, the terminology itself has come to describe the limited role one plays in one's own health care: "passive, open to anything poured into his or her mouth or any other portion of one's anatomy; hence the word patient."[378] The rise of the medical establishment has revolutionized the way individuals "think, eat, sleep, work, play, procreate, even die."[379]

Americans, who suspected medical authority in the nineteenth century, became its devotees in the twentieth century.[380] The culture succumbed to the authority of medicine to define pathology, setting the social definitions of illness and health.[381] This enthroned the physician as arbiter of health, often turning economic, religious, and personal problems into medical ones.[382] The broader notion of healing was reduced to medicine.[383]

Even as methods of diagnosis and treatment improved, they also dehuman ized and mechanized patient care, to the detriment of patient health.[384] While technological methods of diagnosis and treatment provided accuracy, they tended to "move the evidence . . . away from the patient," and to reduce an individualized patient to an organ or body part requiring the use of a particular technology.[385] The attempt to limit uncertainty resulted in further reductionism, distancing physician from patient, perpetuating and masking institutional power, and burying the complexity of illness in a thicket of abstractions.[386]

The reduction of healing to medicine reflects reliance on the Newtonian physics and Cartesian dualism.[387] By separating mind and body and viewing health in terms of human parts, the medical model has overrelied on technology as the harbinger of "healing."[388] The problem is particularly acute in cases of chronic or terminal illness, or in the case of fragile, elderly patients.[389] Moreover, medicine tends to impose a "technological vio lence," when a particular treatmentsuch as chemotherapyeither directly imposes the violence, or "sets the stage for the advent of another [disease], perhaps even more cruel than the death one has just averted."[390] Nor is medicine particularly good at caring humanely for dying patients.[391] By orienting care toward biological preservation and engaging in a systematic denial of death, modern medicine deforms the process of dying, the dying self, and the community of the living.[392]

In many cases, the medical model produces particularly disastrous results.[393] For example, William Styron writes of his struggle with clinical depression:


The psychiatric literature on depression is enormous, with theory after theory concerning the disease's etiology proliferating as richly as theories about the death of dinosaurs or the origin of black holes. The very number of hypotheses is testimony to the malady's all but impenetrable mystery.[394]
Styron, with black humor, goes on to describe the way the medical paradigm strips the patient of dignity and flattens the emotional dynamic underlying illness:


When I was first aware that I had been laid low by the disease, I felt a need, among other things, to register a strong protest against the word "depression." Depression, most people know, used to be termed "melancholia," a word which appears in English as early as the year 1303 and crops up more than once in Chaucer, who in his usage seemed to be aware of its pathological nuances. "Melancholia" would still appear to be a far more apt and evocative word for the blacker forms of the disorder, but it was surpassed by a noun with a bland tonality and lacking any magisterial presence, used indifferently to describe an economic decline or a rut in the ground, a true wimp of a word for such a major illness. It may be that the scientist generally held responsible for its currency in modern times, a Johns Hopkins Medical School faculty member justly venerated, the Swiss-born psychiatrist Adolf Meyer had a tin ear for the finer rhythms of English and therefore was unaware of the semantic damage he had inflicted by offering "depression" as a descriptive noun for such a dreadful and raging disease. Nonetheless, for over seventy-five years the word has slithered innocuously through the language like a slug, leaving little trace of its intrinsic malevolence and preventing, by its very insipidity, a general awareness of the horrible intensity of the disease when out of control.[395]
Styron's evocative account of his own journey through depression reveals the way in which the Newtonian/Cartesian approach to human suffering left him bereft, even suicidal;[396] even the language used to describe his condition was dehumanizing and sterile.

In Styron's case, the disease seems to have ended of its own accord, independent or perhaps in spite of the various treatments; Styron hypothesizes that his depression signaled an inner process of unfinished mourning for the loss of his mother.[397] Ultimately, Styron turns to subjectivity, to the creative process of the human spirit for understanding and consolation.[398]

Styron's choice suggests the recognition that healing may have a broader context than medicine. In the last fifteen years, there has been renewed interest in homeopathy, among other alternatives.[399] Some medical schools are beginning to introduce courses on alternative healing practices, using the term "complementary medicine."[400] For example, Harvard Medical School and Beth Israel Hospital are offering a continuing education course on chiropractic, acupunctural, homeopathic, herbal, dietary, and vitamin therapies, and mind-body interventions.[401] Lay interest in herbal medicines and folk remedies is increasing, along with scientific investigation of indigenous remedies and medicines.[402] Practitioners and patients are exploring medicinal systems of India, Japan, Korea, and China.[403]

All this suggests a great deal of movement away from medical "ortho doxy"; however, the nineteenth-century attack on sectarians still finds echoes in modern assaults on alternative practitioners.[404] The tendency to equate alternative medicine with fraud and to treat "regular" medicine as occupying the field is echoed by courts upholding convictions of alternative practitio ners,[405] and by decisions such as Rutherford, which evaluate alternatives against a backdrop of known frauds.[406] However, determining whether fraud has occurred requires identifying and applying the elements of fraud. As suggested, this analysis is typically missing in judicial opinions, because courts typically conflate the fraud and scope of practice analyses.[407] Courts are, indeed, heavily invested in the medical model.[408] This, too, arguably reflects the Newtonian/Cartesian paradigm, which underpins the social construction of "orthodox" medicine and "alternative" healing.[409] Section IV will propose a model to disentangle the historical bias toward orthodoxy from the values behind the regulatory system preventing fraud and protecting patients.

IV. REGULATORY REFORM

In applying the physician licensing statutes to alternative practitioners, the courts have failed to distinguish two related, but distinct issues: first, the question of fraud; second, the scope of practice. The first issue addresses whether the practitioner has committed fraud by deluding the consumer into effective, dangerous, or misleading treatment.[410] The second addresses how broadly a legislature has intended to define, or should define, the "practice of medicine."


A. Preventing Fraud

Fraud derives from the classical action of deceit.[411] The essence of the tort is "the capacity of mankind for duping, deceiving, tricking, and taking advantage of the less informed or the gullible."[412] As one court noted, "the forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise . . . ."[413]

In general terms, fraud comprises "anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another or by which an undue and unconscionable advantage is taken of another."[414] The definition thus includes a mental state, intent to deceive, and an act, deception.[415] The mental state requires knowledge that one's conduct will deceive, as opposed to negligence.[416]

In asserting that alternative practitioners are committing "fraud," consider the following scenarios:


Case 1: Sagebrush (healer) promises Quicksilver (patient) a complete cure. Sagebrush knows his work lacks any basis in reality.

Case 2: Sagebrush promises a complete cure and honestly believes this to be true.

Case 3: Sagebrush, who has no intention of deceiving Quicksilver into believing in a "quick cure," or forgoing medical treatment, tells Quicksilver: "I am not diagnosing or treating your condition. I am diagnosing chi, the energy in your field, and will be treating you energetically."

Case 4: In addition to the facts in Case 3, Sagebrush urges Quicksilver to consult with his physician before undergoing touch healing, and not to rely on touch healing as a panacea or cure for his disease.

Case 5: In addition, Sagebrush tells Quicksilver: "Touch healing may have beneficial effects on your energy field which can translate into physical benefits; however, this has not yet been tested through established scientific and medical procedures. Do not rely on this treatment. Consult your physician as to any procedures used or suggestions made today regarding your physical or emotional health."
In Case 1, Sagebrush arguably has committed fraud: he has intentionally deceived Quicksilver into believing that touch healing will shrink or eliminate his tumor. This is the very kind of danger the legislature sought to address: an avaricious operator who takes advantage of a gullible, vulnerable patient.[417] In this case, the healer should be quickly and vigorously prosecuted.[418]

In Case 2, the element of intent is missing. In a sense, Sagebrush is innocent: he honestly believes he is helping the patient, but is not intentional ly defrauding him.[419] One might argue that Sagebrush has no business viewing Quicksilver as a "patient"; indeed, Sagebrush could conceivably be prosecuted for "holding himself out as a physician." But that goes to the "practice of medicine" issue, which asks how broadly "medicine" should be defined and has nothing to do with actual fraud.[420]

Case 3 goes to the scope of practice issue. Sagebrush addresses himself solely to the patient's "energy field,"[421] which is not the locus of the disease, but only the locus of "block or distortion" that ultimately underlies any physical disease.[422] He reminds Quicksilver that, for touch healing to work, no physical contact is necessary.[423]

In Case 4, Sagebrush is making a thorough disclaimer, consistent with norms underlying informed consent. Here Sagebrush encourages Quicksilver to consult with a physician. The client, who might prefer a nostrum or palliative, or to forgo treatment altogether, is prodded to seek medical advice.[424]

The disclaimer is strengthened in Case 5. Conceivably, courts could, as a policy matter, invalidate any such disclaimer, and any accompanying release signed by the client.[425] However, the argument for invalidation would be that touch healers should not be entitled to practice. One could base the argument on the insufficiency of controlled double-blind experi ments, or on the paternalistic desire to prevent patients from overrelying on healers to the detriment of their own medical care, but this is different than concluding that the alternative practitioner is perpetrating a fraud. Indeed, the argument suggests that "fraud" may become a label for "not accepted by conventional medicine."

If fraud is involved, courts should not hesitate to convict healing practi-tioners. However, if fraud is not involved, courts should not echo the AMA and automatically presume quackery. The issue of fraud is distinct from whether the individual offering a particular health care modality is "practic ing medicine" within the meaning of the licensing statute.[426]

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B. Promoting Care

1. Respecting Autonomy

The broad scope of practice in medical licensing statutes reflects a bias toward medical paternalism and against patient autonomy. Autonomy is a central value in medical decision-making.[427] Respecting the patient as an autonomous agent requires acknowledging the individual's right to make choices based on personal values.[428] Disrespect for autonomy, on the other hand, entails ignoring, insulting or demeaning those choices.[429] We value autonomy to respect the individual's unconditional worth, manifested as the right to determine one's own destiny, and to allow the individual to live according to personal conviction, so long as this does not interfere with the autonomy of others.[430]

Rights such as confidentiality and privacy derive from autonomy.[431] Respect for autonomy means helping patients overcome their sense of dependence and achieve as much control over their bodies and care as possible.[432] This notion underpins the doctrine of informed consent.[433] Autonomy should be overridden only by competing and overriding moral principles.[434]

The practice of medicine, and statutes licensing medical practice, are based on paternalism: the notion of physician as a benevolent parent making decisions for dependent, ignorant children.[435] Paternalism generally involves interference with autonomous choices.[436] Weak paternalism protects persons against substantially non-voluntary conduct, such as conduct by an addict.[437] Strong paternalism violates informed, voluntary, and autonomous choice.[438]

Strong paternalism is justified only if the following conditions are satisfied:[439]


1. The patient is at risk of a significant preventable harm.

2. The paternalistic action will probably prevent the harm.

3. The projected benefits to the patient of the paternalistic action outweigh its risks to the patient.

4. The least autonomy-restrictive alternative that will secure the benefits and reduce the risks is adopted.[440]
Applying these criteria suggests how profoundly depriving patients of the right to select the alternative treatment of their choice violates patient autonomy and imposes an unjustified strong paternalism.[441] First, the asserted risk is that the patient will be harmed by the treatment or forgo medical treatment altogether. The possibility of active harm is difficult to envision, if all the practitioner is doing is using hands to affect Quicksilver's "energy field."[442] Indeed, if nothing else, Quicksilver may benefit from a placebo effect.[443] As for possibility of harm through passivity, the patient's reliance on a touch healer can be mitigated by a statutorily mandated disclaimer. The patient's unjustified reliance on the disclaimer can be remedied by requiring advance physician consultation or by requiring the practitioner to ask whether the patient has consulted a physician.[444]

Applying the second criterion, banning so-called "alternative" practitioners will not prevent patients from exploring complementary healing modali ties.[445] Moreover, a patient could still seek a healing touch from a caring friend or relative.

The third criterion requires that the projected benefits to the patient of removing access to alternatives outweigh the risks. The purported benefits consist in protecting the patient from a treatment that is either harmful or ineffectual, or which might be substituted for medical care. However, medical orthodoxy shifts the burden to proponents of alternative treatments to show their virtues.[446] In this way, medical paternalism may be no more than medical "chauvinism."[447] Moreover, most patients use unconventional providers to complement, rather than to substitute for, medical care.[448] Finally, patients such as the hypothetical Quicksilver, the plaintiff in Andrews, and the terminal cancer litigants in Rutherford, risk little by seeking touch healing or other holistic practices; indeed, when medicine no longer works, denying access to complements or alternatives may sentence these patients to a life of chronic pain or to a violent death.[449]

The fourth criterion is violated by any outright ban on alternative prac-tices.[450] As the court in Andrews noted, less drastic regulatory means ex istfor example, statutorily-mandated disclaimers and referrals, consulta tions, and physician supervision.[451] Finally, if patient health is the benefit to be secured, then limiting "healing" to "medicine" is hardly the least autonomy-restrictive alternative.[452] Rather, the argument for autonomy suggests respecting patient choices, and narrowing the term "medical practice" to practices that are truly "medical."[453]

2. Acknowledging Caregiving

By preferring paternalism to patient autonomy, medical practice acts devalue patient rights. Generally, the law analyzes physician-patient relations from a rights-based perspective.[454] Rights are "justified claims that individuals and groups can make upon others or upon society."[455] Rights theory in bioethics refers to liberal individualism, the notion that in a democratic society, individuals have a legally protected space in which to pursue personal interests.[456]

While widening access to alternative medicine supports patients' autonomy rights, it also implicates an ethics of care.[457] Caring refers to "emotional commitment to, and willingness to act on behalf of persons with whom one has a significant relationship."[458] Kantian universal rules, utilitarian calculations, and rights are less important.[459] "[R]esponsibility," "trust," "fidelity," and "sensitivity" matter.[460]

The ethics of care maintains that rights and obligations do not adequately capture the moral responsibilities between health professionals and their patients.[461] Rather, the expression of feelings gives rise to mutual interde pendence in relationships.[462] Acknowledging this interdependence shifts the emphasis from "curing" to being "a healing presence to one another."[463] As one physician notes, "whatever external approaches we choose, disease has another side, which can be approached not through doing but through understanding."[464]

Furthermore, affirming the emotional texture of the caregiver-patient interaction transforms the perspective of that relationship from one of dominance and dependence, respectively, to one of "adult collaboration."[465] The physician may disagree with the patient's choices and yet remain in relationship with the patient as primary caregiver.[466]

To the extent that holistic forms of healing treat the patient as a person, they reflect an ethic of caregiving. Indeed, the experience of "deep caring, empathy, and emotional support"[467] may be healing. The healer and client exchange in relationship, as autonomous, independent agents; the former acts as a "healing presence" to the latter, with an emphasis on caring, not curing.[468] In this way, "caring can be offered without paternalism . . . within a context worthy of trust," transforming the patient into an active partner in self-care.[469] The healing relationship, occurring outside the medical institution, values and protects the emotional aspects of the experience of illness.[470] In an integrated system of health care profession als, holistic forms of healing see in patient well-being the experience of "care," as well as "cure."

3. Redefining the Scope of Practice

The medical practice acts enshrine the notion that licensing health care practitioners, and prosecuting the unlicensed, serves patient well-being. Licensing, however, is designed to serve the well-being of the licensed, not the public. In fact, licensing is not a narrowly tailored solution to fraud, but a manifestation of the "culture of professionalism."[471]

The term "culture of professionalism" describes a social view of occupation, popularized in the late nineteenth century, which "admirably serve[s] individuals who aspire to think very well of themselves" by elevating their financial and social status.[472] The culture of professionalism regards the "professional" as somehow superior to the "nonprofessional" competitor. As the culture of professionalism ignited Americans' desires to be regarded as "professionals" (and hence as having succeeded in the middle class), plumbers "praised the dignity of . . . [their] work" as a "profession," rather than a mere "trade;" funeral directors "seized the word professional" to avoid being lumped with makers of brooms, boxes and baskets.[473]

The invention of the word "professional" spurred a surge in institutions devoted to "professional" education; in health care, for instance, the number of "professional" medical schools rose from twelve in 1801, to eighty-six in 1899:


Specialists were consolidating their considerable status as they moved to monopolize the presidency of the AMA, control the faculties of medical colleges, pressure for the creation of specialty hospitals, dominate the staffs of general hospitals and dispensaries, and establish a clientele among persons with means and power.[474]
Licensure, along with specialization and professional monopoly, responded to the call for fending off competitors.

Licensing not only creates a dubious distinction between "professionals" and their "nonprofessional" competitors, it also provides an inefficient, ineffective means of excluding the untrained.[475] Although licensing purports to protect the public against incompetence and fraud, it actually serves to insulate established practitioners from competition.[476] Typically, it is these entrenched practitioners who most ardently defend licensure; the general public does not have a special interest sufficient to motivate an organized opposition.[477]

Licensure not only entrenches the established; it also makes entry to the profession costly, if not forbidding.[478] Those who have taken the Bar exam may appreciate this proposition.[479] While licensure provides some level of consumer protection,[480] it unnecessarily restricts entry in order to protect and promote existing practitioners' pocketbooks.[481] Medical licensing, in particular, entrenches practitioners, and results in increased health care costs, shortages in the supply of health care professionals, and ineffective education and provision of services.[482] Indeed, medical licensing is ineffective in controlling incompetent or fraudulent practitioners.[483] Medical licensing exacerbates quackery by restricting the supply of legitimate practitioners, forcing consumers to seek underground substitutes.[484] Higher costs, reduced competition and increased bureaucracy result.[485] Moreover, since medical licensing boards are staffed by individuals drawn from, and committed to promoting, the licensed profession, medical licensing intensifies the protection of non-patient interests.[486]

Despite these failures, medical licensing persists, perhaps because it serves as the "key to effective control" over the profession. To practice medicine, one must obtain a license; to obtain a license, one must graduate from an approved school; and the list of approved schools maintained by licensing boards typically coincides with the list maintained by the AMA's Council on Medical Education.[487] When physician incomes decline, the Council can restrict physician supply.[488] Because the medical profession controls licensure and lobbies for broad interpretation of prohibitions on unlawful "practice of medicine," allied health professionals, and even barbers, cosmeticians, and manicurists have had to seek separate licensing; some legislatures have even "found it necessary explicitly to exempt shoe fitters from the requirements for a medical license."[489]

Many commentators advocate the outright abolition of medical licens ing.[490] Whether medical licensing is abolished or not, however, it reflects the political, economic, and legal entrenchment of the medical profession. The view that "medicine" occupies the universe of "healing"[491] must be viewed in this context: politically, the medical profession supplies the paradigm in which medical licensing is understood, interpreted, and enforced. Since the Flexner report, the AMA has used medical practice acts to stave off any perceived encroachment on its professional turf.[492] The late nineteenth-century efforts to squash "irregular physicians" and eliminate homeopaths have continued in successive fights against osteopaths,[493] psychologists,[494] physician assistants,[495] nurse practitioners,[496] midwives,[497] and other health care professionals; each group has had to fight either for separate licensing, or to broaden its statutory carve-out from the medical practice acts.[498]

As a result, while in the past fifty years, the health care system has changed fundamentally, the "practice of medicine" statutes have hardly changed.[499] In California, for example, the definition of medical practice in terms of diagnosing, treating, operating or prescribing for any ailment or injury has not changed since 1937.[500] Rather than redefine the scope of medical practice, legislatures and courts have redefined the scope of practice allocated to allied health care providers. The ensuing regulatory system defines non-physicians in pigeonholed categories and fails to recognize that professional functions, which form the basis for the licensing distinc tions, in fact overlap.[501] For example, nurses and psychologists often "diagnose," "treat," and/or "prescribe."[502] So do chiropractors.[503] Even courts have begun to acknowledge that physicians do not perform these functions exclusively.[504]

Proposals for reform have included limiting licensing provisions to restrictions on use of title (for example, "M.D.") rather than on the perfor mance of specific functions (for example, "diagnosis"),[505] limiting the definition of "medicine" to practice involving the use of medicines,[506] and expressly authorizing certain allied health care professionals to "diagnose" or "prescribe."[507] Each of these solutions would bring the historical definition of "practicing medicine" into greater conformity with the current reality. The more generalized solution, however, requires reform on three levels: legislative, judicial, and public.

On a legislative level, medical practice acts must be amended to define "practicing medicine" in terms specific to the medical profession, rather than in global, functional terms derived from historical notions of physician dominance. For example, the core definition could be amended to read as follows:


The "practice of medicine" means: (1) medical diagnosis, treatment, operation, or prescription for physical or mental disease (emphasis added).
With this amendment, the term "medical" modifies "diagnosis," "treatment," "prescription," and "operation" to clarify that a physician utilizes medical education to assess a patient's condition and propose solutions.[508] Overbroad language such as "any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality,"[509] has been deleted, recognizing that not all human pain is medical pain, that the human "condition" may require more than prescriptions or surgery, and that various "means and instrumentalities" may exist alongside medicine as part of a patient's health care regimen.[510] The proposed definition links the caregiver function to caregiver education, which is "medical" rather than universal.[511]

The amendment acknowledges that physicians do not occupy the universe of healing, but rather inhabit an important place in a system of medical, allied, and alternative or complementary health professionals.[512] For example, most physicians are not trained to practice acupuncture or touch healing, or, for that matter, nursing or chiropractic.[513] A physician typically does not assess the flow of chi, the balance of yin and yang, the energy field, or the nerve energy[514] in a patient's spine.[515] Nor do any of these modalities necessarily conflict with medical treatment, treatment according to established medical protocol, using available technologies and scientifically established methods. Indeed, holistic and touch healing may be particularly valuable where medical techniques alone, such as chemotherapy, radiation, and even surgery, impose a "technological violence" on patients.[516]

Beyond amending medical practice acts, legislatures should continue to open the "healing arts" by licensing such complementary health professionals as practitioners of touch healing. Many states, finding complementary practices beneficial to patients, already license chiropractors,[517] osteo paths,[518] naturopaths,[519] massage therapists, [520] acupuncturists,[521] and practitioners of homeopathy. [522] In Nevada, for example:


The practice of Oriental medicine . . . is hereby declared to be a learned profession, affecting public safety and welfare and charged with the public interest, and therefore subject to protection and regulation by the state.[523]
Such an approach respects patient preferences[524] and recognizes the expertise of nonmedical healing professionals.[525]

As with practices such as chiropractic[526] and acupuncture,[527] it is those skilled and trained in the particular treatment who must guide the legisla ture.[528] The definition of touch healing could, for example, include:


contact or non-contact touch, which does not involve manipulation of the neuromusculoskeletal systems, for the purpose of generating a relaxation or other healing response to affliction.[529]
The proposed definition permits touch healers to apply touch or non-contact touch as a healing modality without manipulating the neuromusculoskeletal system.[530] The healer treats the energy field. The treatment may affect the patient's physical condition, or, it may simply create a greater sense of wholeness. The healer may make an "energy diagnosis", not a medical diagnosis, but an assessment of the patient's chi. The healer is not practicing medicine, massage, nursing, chiropractic, religion, nor anything within our existing paradigm. As suggested, touch healing may stretch our conceptual categories.

In any event, to prevent touch healers from taking responsibility for the patient's medical condition, and to prevent overreliance by patients on alternative practitioners, two provisions could be added. First is the standard provision that the practitioner "may not practice medicine."[531] Second is the requirement, suggested by the court in Andrews, that patients consult physicians prior to obtaining alternative treatments.[532] A third possibility is to require appropriate disclaimers for each practice, and to mandate referral of patients to physicians for appropriate medical care. This is consistent with notions of autonomy and assumption of risk. A fourth option is to provide for tort or contract remedies in the case of injury relating to negligent practice or breach of warranty.[533]

On a judicial level, reform means rethinking the current state of deference to the medical model.[534] If alternative practitioners are prosecuted for "practicing medicine," courts should carefully consider whether the challenged practices actually constitute "medicine." Given that statutes licensing such diverse practitioners as physicians, nurses and chiropractors all contain terms such as "diagnosis" and "treatment," courts should hesitate to brand a practice "medical" simply because it involves assessing or addressing a human condition.

Courts also should reexamine any reflexive equation of "alternative" practices with "quackery." This could include giving less weight during trial to opinions, procedures and testimony that bear the term, medical.[535] Finally, reform on a judicial level means relying less on licensing laws and more on tort and contract remedies for egregious violations by alternative practitioners.[536] Indeed, contracting principles may be especially appropri ate, because many holistic healing practices rely on consensus and mutual responsibility.[537]

On the level of public awareness, reform entails a greater recognition of patient autonomy and of the extent to which paternalism has invaded health care and regulation. Patients must reclaim power over their own bodies. Greater education about alternative and complementary modalities will still the cry of fraud.[538]

As regulatory reform proceeds, legislatures, courts, and consumers can and should utilize the common law tort of fraud to target quacks. Where fraud exists, fraud should be prosecuted; those who actually intend to, and succeed in, taking advantage of patient vulnerability and luring patients away from medical treatment with the promise of quick cures, are indeed engaging in what society proscribes as criminal.[539] Ultimately, education may become the means for weeding out charlatans from practitioners who, though their methods may challenge conventional paradigms, truly are committed to patient care.[540] As physician dominance erodes, the patient, as a person, will have a greater voice in health care decisions.[541] The "silent world of doctor and patient" will shift to one in which the two parties not only engage in dialogue, but act as partners in a shared enterprise of mutual benefit.[542]

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CONCLUSION

The emergence of holistic healing indicates a movement from medical orthodoxy toward a broader conceptualization of illness and health. To safeguard patient choices and recognize the growing body of literature regarding alternatives, policymakers should reexamine the reduction of healing to medicine, and the equation of nonmedical alternatives with fraud. The current regulatory scheme, embodied in state "practice of medicine" statutes and related case law, reflects an outmoded view of health care, in which the physician is the sole purveyor and guardian of health.

Constitutional norms and common law doctrines such as informed consent and assumption of risk provide some support for giving patient preferences greater deference. These doctrines should be expanded to recognize patient interest in complementary healing modalities. Moreover, since common law fraud protects patients against "quacks," lawmakers should acknowledge and encourage a more integrated system of healing professionals.

To shift from an exclusively medical paradigm to a framework that includes touch and other forms of holistic healing does not mean that the insights, discoveries, and therapeutic devices of modern medicine will be discarded or diminished. Nor does the movement from medicine to healing mean returning to the Dark Ages or succumbing to quackery. Rather, rethinking the paradigm means freeing the law from conceptual and historical limitations, and opening to embrace a broader set of possibilities for the journey into health.

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