CAMLAW: Complementary and Alternative Medicine Law Blog

Use of machine to 'read energy' and treat disease

Can a licensed or non-licensed health care provider use a machine that gives 'energy readings' and seems to help patients?

I am getting many calls from health care practitioners, both licensed (including MDs and DOs, nurses and psychologists) and non-licensed practitioners who are interested in various technologies that 'read energy' and help patients, either by pulsing stated magnetic impulses, using vibrational medicine, or otherwise.

Many are telling me that they are getting results with their patients and clients, and that they cannot imagine foregoing these useful tools.

There are risks, both of malpractice, unlicensed medical practice for the non-licensed practitioner in many states, and professional discipline for the licensed provider. Energy psychology is increasingly popular and one has to guide clients carefully. There is also an emerging synthesis of medicine, psychology and spirituality that I describe in Healing at the Borderland of Medicine and Religion.

Here is an interesting case from Michigan. It came up when I searched for cases on integrative medicine, alternative medicine, holistic health care, or energy healing.

Summary: The defendant was treating patients with homeopathic and alternative medicine therapies. The defendant's patients were charged for the various supplements and tonics that the defendant provided as well as her time. The defendant was charged with violating Mich. Comp. Laws Serv. § 333.16294 after one of her patients requested the State to determine if she was a real doctor. The defendant moved to quash the informations, alleging that the definition of "practice of medicine," as stated in § 333.17001(d) was void for vagueness and overbroad, as it encompassed conduct and speech protected under the First and Fourteenth Amendments of the United States Constitution, and because it was so broad that it provided no guidelines to law enforcement. The appellate court noted that, as case law decided since the enactment of the statute limited its application, it did not prohibit individuals from offering their advice as to the best cure and/or remedy for another's malady. The statute was not unconstitutionally vague, as it provided notice of criminal prosecution and did not provide unfettered discretion with law enforcement officials to determine if it had been violated.

Now for the meat of the opinion. Here are the facts:

Testimony at the preliminary examination included that of Sue Wrubel, who took her then eighteen-month-old son, Shane, to see defendant on November 3, 1999, on a friend's recommendation. A medical doctor had recommended to Wrubel that Shane get tubes in his ears and Wrubel was interested in a nonsurgical solution to Shane's ear problems. Wrubel understood defendant was an alternative practitioner.

Defendant's office was located in the basement of her home in Berkley. Defendant came in and hooked Shane to a machine. Wrubel could not recall if defendant told her the name of the machine because Shane was upset and crying. Shane remained in Wrubel's lap after he was connected to the machine and, after Shane had calmed down, Wrubel and defendant talked about Shane's ear problems and defendant's qualifications.

Wrubel testified that defendant told her that she was a medical doctor and had obtained the highest degree of natural doctoring. Wrubel did not examine the many certificates lining defendant's walls, but was impressed by them and interpreted them to mean that defendant was demonstrating how qualified she was. Wrubel did not recall defendant explaining that she was a naturopathic medical doctor, but admitted defendant may have told her this. Wrubel admitted that she assumed that defendant was a natural doctor as opposed to a medical doctor. Wrubel did not recall defendant explaining about the different meridians of the body, about biofeedback, or about electromagnetics. Defendant tried to answer Wrubel's questions and to be helpful.

Once the machine finished, defendant told Wrubel that Shane had a tapeworm, a bacteria that was probably causing his earaches, and a brain aneurysm. Wrubel was surprised by this news because she believed Shane was just experiencing earaches and thought that the machine was reading her because Shane was sitting on her lap. At Wrubel's request, defendant hooked her up to the machine. Wrubel looked at the computer screen and observed a column of diseases or conditions next to a column of numbers, but the screen did not indicate if the condition or disease was present. When the machine finished, defendant informed Wrubel that she had breast cancer, ovarian cancer, and a brain aneurysm, which was not unusual because aneurysms are generally hereditary. Wrubel was shocked to learn that she had cancer. Although Wrubel agreed that defendant told her that her and Shane's problems existed on a molecular level, Wrubel did not know what this meant. Wrubel looked up the definition of molecular when she went home, and she determined it meant "minuscule."

Wrubel purchased remedies from defendant, because defendant told her the remedies would cure her cancer and Shane's ailments. Wrubel paid over $ 500 for the visit and for the remedies, did not recall signing a consent form at defendant's office, and did not ask if defendant accepted insurance or otherwise inquire about payment at the time she made the appointment. Wrubel admitted that defendant did not force her to purchase the remedies and that she wanted to follow the program suggested by defendant. Although Wrubel did not take any of the remedies, she did give them to Shane.

After Wrubel told her husband about the visit to defendant, he called defendant and asked for a refund. Defendant agreed to refund the purchase price for any unopened remedies. After unsuccessfully attempting to get a full refund, Wrubel's husband contacted the state for assistance in getting a refund and to determine if defendant was a doctor.

Kimberley Wiegand also testified during the preliminary examination. She stated that she went to her first appointment with defendant on December 20, 1999. Wiegand had been diagnosed as having symptoms of multiple sclerosis (MS) for nine years. Wiegand's symptoms first became evident when she began tripping, and ultimately, the entire right side of her body became numb and she required a leg brace. Since she had been diagnosed, Wiegand had seen a number of neurologists and received no treatment because she was told there was no cure for MS.

A friend recommended that Wiegand see defendant and made it clear that defendant was an alternative practitioner. Wiegand was interested in seeing defendant because defendant was not another neurologist, and Wiegand hoped that defendant could offer her something different than what had been offered by traditional medicine. When Wiegand called to make the first appointment, she believed that the receptionist told her the visit would not be covered by insurance, and Wiegand did not expect insurance to cover her visit to defendant because she knew the treatment focused on vitamins and different remedies. Wiegand's husband accompanied her on her visits to defendant's office because she required assistance walking.

In Wiegand's opinion, visiting defendant's office was unlike a visit to a typical doctor's office because there were comfortable chairs, no medical instruments or equipment, she was not required to remove her clothes, and her medical history was not taken. Defendant's assistant hooked Wiegand up to a machine by attachments secured with Velcro to her ankles, middle fingers, wrists, and head. Wiegand was hooked up to the machine for approximately forty minutes, during which time defendant came downstairs and talked with her. Defendant told Wiegand that she had been a nurse at a hospital cancer ward and was an M.D., which Wiegand interpreted to mean medical doctor. Defendant also gave Wiegand a business card and pointed out the M.D. on the card. Wiegand was shown defendant's business card at the preliminary examination, and she admitted the card stated that defendant was an "N.M.D." Wiegand did not know what the N represented, but she recalled defendant telling her she was a naturopathic practitioner. Wiegand also specifically recalled that defendant told her that she was an M.D. and not an N.M.D. Wiegand believed that defendant was a doctor on the basis of defendant's representations that she had been a nurse and was an M.D. Although Wiegand was looking for something different than traditional medicine and the naturopathic or homeopathic aspect of defendant's treatment interested her, she was also impressed that defendant had been a nurse and was an M.D. According to Wiegand, defendant talked a lot, responded helpfully to her questions, and appeared to be trying to educate her.

Defendant informed Wiegand that she did not have MS, but had a bacteria in her body. Defendant told Wiegand that her numbers were high and she needed to bring the numbers down. Wiegand was excited to learn that she did not have MS and to find someone who could help her. Defendant informed Wiegand that if she took all the remedies suggested by defendant, it would take one month for every year that Wiegand had been diagnosed as having MS to clear up the bacteria causing Wiegand's problems. Wiegand could not recall the specific terms defendant used in explaining how the remedies would affect her body and just recalled that she was supposed to be "one hundred percent" in nine months, meaning that she would no longer have to wear a leg brace and the bacteria would be gone. Defendant also told Wiegand to jump on a trampoline and to lymphasize with a massager in order to unblock her lymph nodes. Wiegand jumped on a trampoline by holding onto her husband and lymphasized faithfully every day with a massager. Wiegand purchased the remedies from defendant, which defendant had in her office, and paid approximately $ 550 for this first visit and the remedies.

On January 18, 2000, Wiegand had a second appointment with defendant. Wiegand was again hooked up to the machine and defendant examined [***8] Wiegand's numbers and told Wiegand that five of her ailments, including a gall stone, inflamed appendix, inflamed small intestine, and inflamed large intestine, had been cured and that she was doing better in a number of areas. After examining the numbers on the machine, defendant prescribed a few different things, took a couple of things away, and ultimately added four more remedies.

Wiegand explained that defendant had told her that she should start noticing some small improvements or progress within a week, and Wiegand was concerned because a month had passed since her first appointment and she had noticed no improvement. Defendant reiterated that it would take one month for each of the nine years that Wiegand had been diagnosed with MS for her to heal. Again, defendant thoroughly answered Wiegand's questions, did not appear to be withholding information, and appeared willing to spend a lot of time with Wiegand.

Wiegand paid approximately $ 1,265 for the two appointments and treatment and went to defendant's house in between the two appointments to procure additional remedies. Wiegand canceled her third appointment with defendant, scheduled for the middle of March 2000, after she learned of the charges against defendant.

Michigan State Police Detective Trooper Brian Davis of the Diversion Investigation Unit was referred to the Wrubels in January 2000 by the State Bureau of Health Services. Davis testified during the preliminary examination that, after contacting the Wrubels regarding their experience with defendant, he posed as a patient with lower back trouble and made an undercover visit to defendant's office with Detective Trooper Kelly Feever on February 7, 2000.

Davis described the machine he was connected to as computer-driven with electronic leads connected to another electronic device. Defendant's assistant told Davis that the machine was a Phazx biofeedback machine, registered with the Food and Drug Administration (FDA) as a class two, noninvasive device. Davis subsequently confirmed that that information was correct.

Defendant introduced herself as "Dr. Rogers" and was wearing what appeared to be medical scrubs embroidered with "Dr. Rebecca Rogers, N.M.D." Davis' visit lasted over two hours, and he was told not to speak while he was hooked to the machine. Defendant voluntarily told Davis that she had been in the medical field in the past, was disappointed with the level she had been in, and wanted to increase her level. Defendant told Davis that she had applied to be a doctor at a holistic hospital, but was denied employment. Defendant made reference to seeing a judge, who advised her that she had to be an M.D. Defendant explained that because it would be easier to obtain her M.D. than to change the law, she went back to school and procured an M.D. At one point, defendant said she was a naturopathic M.D. Defendant also initiated a conversation about the problems with the practice of medicine today. According to defendant, the practice of medicine relied on excessive prescription drug use that caused cancer, and defendant stated that the real cause of cancer had been discovered by a man who was arrested by the FDA because it did not want the cure released.

After approximately twenty minutes, defendant removed the Velcro straps from Davis and asked Feever to slide around the desk so she could see what the screen [***11] indicated about Davis' condition. Defendant's primary conclusion was that Davis' stomach, liver, and pancreas were in precancerous states. The computer screen listed the diseases or ailments in one column, next to another numeric column that indicated the particular organ's condition. Defendant explained that a number above ten thousand indicated an active cancerous state while a number below ten thousand indicated a cancerous state in its infancy. After explaining that as an N.M.D. she could not tell Davis that she could cure him, defendant told Davis that she could tell him that she builds immune systems and rids the body of toxins.

Defendant recommended a four-step treatment plan and told Davis that the remedies would eliminate the toxins in his body that were causing his problems and would cure Davis' problems. This treatment plan consisted of (1) consuming a proper diet, (2) drinking plenty of water, (3) taking the remedies purchased from defendant on that day, and (4) lymphasizing. Defendant explained that lymphasizing involved unclogging clogged lymph nodes in order to allow the body to rid itself naturally of toxins, and that lymphasizing could be done by massage with an electronic massager or by jumping on a trampoline for ten minutes three times a day. Davis claimed that defendant told him that he would be cured in four months provided he followed this treatment plan, and he purchased the remedies from defendant.

Does this sound familiar? Using a machine to read the body's energy, talking about removing toxins, using a consent form and trying to argue around unlicensed practice of medicine.

Defendant had Davis sign a consent form, which was used to refresh his recollection [**601] at the preliminary examination and read into the record. It stated as follows:

It is not her capacity nor her intent to diagnose or treat specific diseases. It is her intention to assist the body to rid itself of toxins and correct chemical imbalances in order to activate the immune system.

Davis requested a search by the Bureau of Health Services to determine whether defendant was licensed in a medical field in Michigan, and received a certificate of nonlicensure under seal from the bureau indicating that defendant was not licensed to practice in any medical field in Michigan. Davis testified that [*87] Michigan does not license the practices of naturopathy and homeopathy.

On March 2, 2000, defendant was arrested on two complaints alleging three counts of unauthorized practice of medicine for her treatment of Davis, Sue Wrubel, and Shane Wrubel. On the same day, [***13] Davis obtained a warrant to search and seize defendant's property, including all certificates, diplomas, degrees, awards, or other documentation indicating correspondence training or education received by defendant in any care field or any health care related practices. Davis testified that he did not seize any of defendant's certificates or diplomas because none of them indicated that defendant was a medical doctor or had attended a medical school. Davis testified that he had no notes or records of what defendant's formal education was. Defendant's entire house was searched, the Phazx machine was seized, and one computer was seized from defendant's bedroom. Davis testified that he did not determine whether defendant was trained in the operation of the Phazx machine. Davis testified that he checked into the nature of the remedies defendant administered and that the FDA opined that defendant was legally selling dietary supplements.

Regarding defendant's education, Davis testified that he did not talk to defendant after her arraignment, but that a Detective Sergeant Larson did and defendant told Larson that she had a federal license issued from the Department of Health in the District of Columbia. Neither Davis nor Larson checked whether defendant in fact had been issued a federal license because they felt it was irrelevant.

On March 14, 2000, two complaints and two warrants were issued charging two additional counts of unauthorized practice of medicine against defendant arising out of her treatment of Wiegand on two occasions.

Predictably, the arrest and charge for unlicensed practice of "medicine."

The court found: "The Defendant's conduct is exactly the type of conduct the statute sought to prohibit. She held herself out as a licensed medical doctor, used a machine to render a diagnosis of various diseases, and advised her patients of a plan of treatment which would cure them of those diseases." The consent simply did not matter. As the appellate court notes: "The Defendant was bound over on a finding that she used a machine to diagnosis [sic] particular problems and sold various tablets designed to alleviate or cure the problems. The Court noted that whether you call it cleansing the system, whether you call it clearing the problem, it all amounts to a diagnosis and treatment and a prescribed remedy for that treatment."

The lower court upheld the application of the statute to the defendant's conduct. The court did have an issue with the statute affecting free speech:

MCL 333.17001(1)(D) [sic] includes in its definition of "practice of medicine," the quote, diagnosis, treatment, prevention, care or relieving of a human disease, ailment, defect, complaint, other physical or mental condition by advice, device, diagnostic test or other means or offering, or holding oneself out as able to do any of these acts, end quote.

This statute's broad definition of practice of medicine, including the giving of advice, would have a significant chilling effect on the free dissemination of ideas of social and political significance, namely discussions relative to alternatives to traditional medical care or nutrition or health matters in general.
Applying the real and substantial test, this Court finds this statute is overbroad on its face and that it contains within in its sweep, constitutionally protected speech.

This is interesting, but on another level, merely maintains the distinction between education (which involves communication and speech) and practice (which requires medical licensure).

In any event, the appellate court found no constitutional problem with the statute, and reversed the part of the lower court's decision granting the defendant's motion to quash the informations. That is a fancy way of describing a procedural result, which boils down to the reality that the defendant lost the case on appeal and was left with the charges of practicing medicine without a license.

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Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173