CAMLAW: Complementary and Alternative Medicine Law Blog

CA Laws Relating to Alternative Medicine Practices by MD's and Others

CA has an interesting take on alternative medicine regulation.

For physician discipline, California law provides:

2234.1. (a) A physician and surgeon shall not be subject to
discipline pursuant to subdivision (b), (c), or (d) of Section 2234
solely on the basis that the treatment or advice he or she rendered
to a patient is alternative or complementary medicine if that
treatment or advice meets all of the following requirements:
(1) It is provided after informed consent and a good-faith prior
examination of the patient, and medical indication exists for the
treatment or advice, or it is provided for health or well-being.
(2) It is provided after the physician and surgeon has given the
patient information concerning conventional treatment and describing
the education, experience, and credentials of the physician and
surgeon related to the alternative or complementary medicine he or
she practices.
(3) It does not cause a delay in, or discourage traditional
diagnosis of, a condition of the patient.
(4) It does not cause death or serious bodily injury to the
(b) For purposes of this section, "alternative or complementary
medicine" means those health care methods of diagnosis, treatment, or
healing that are not generally used but that provide a reasonable
potential for therapeutic gain in a patient's medical condition that
is not outweighed by the risk of the health care method.

California Business & Professions Code.

This is similar to other medical freedom laws enacted in states in response to issues of physician discipline for integration of CAM therapies, but simpler than the more detailed approach taken by the Federation of State Medical Boards. Clear and adequate informed consent is a strong element of this legislation.

With respect to non-licensed CAM practitioners, the law allows them to operate within certain strictures:

2053.5. (a) Notwithstanding any other provision of law, a person
who complies with the requirements of Section 2053.6 shall not be in
violation of Section 2051, 2052, or 2053 unless that person does any
of the following:
(1) Conducts surgery or any other procedure on another person
that punctures the skin or harmfully invades the body.
(2) Administers or prescribes X-ray radiation to another person.

(3) Prescribes or administers legend drugs or controlled
substances to another person.
(4) Recommends the discontinuance of legend drugs or controlled
substances prescribed by an appropriately licensed practitioner.
(5) Willfully diagnoses and treats a physical or mental condition
of any person under circumstances or conditions that cause or create
a risk of great bodily harm, serious physical or mental illness, or
(6) Sets fractures.
(7) Treats lacerations or abrasions through electrotherapy.
(8) Holds out, states, indicates, advertises, or implies to a
client or prospective client that he or she is a physician, a
surgeon, or a physician and surgeon.
(b) A person who advertises any services that are not unlawful
under Section 2051, 2052, or 2053 pursuant to subdivision (a) shall
disclose in the advertisement that he or she is not licensed by the
state as a healing arts practitioner.

2053.6. (a) A person who provides services pursuant to Section
2053.5 that are not unlawful under Section 2051, 2052, or 2053 shall,
prior to providing those services, do the following:
(1) Disclose to the client in a written statement using plain
language the following information:
(A) That he or she is not a licensed physician.
(B) That the treatment is alternative or complementary to healing
arts services licensed by the state.
(C) That the services to be provided are not licensed by the
(D) The nature of the services to be provided.
(E) The theory of treatment upon which the services are based.
(F) His or her educational, training, experience, and other
qualifications regarding the services to be provided.
(2) Obtain a written acknowledgement from the client stating that
he or she has been provided with the information described in
paragraph (1). The client shall be provided with a copy of the
written acknowledgement, which shall be maintained by the person
providing the service for three years.
(b) The information required by subdivision (a) shall be provided
in a language that the client understands.
(c) Nothing in this section or in Section 2053.5 shall be
construed to do the following:
(1) Affect the scope of practice of licensed physicians and
(2) Limit the right of any person to seek relief for negligence or
any other civil remedy against a person providing services subject
to the requirements of this section.

This is somewhat similar to approaches taken in Florida, Minnesota, and Rhode Island. Note that the final parts (2053.6(c)(1) and (2))tell us that the statute does not affect what MD's may or may not do, and does not affect the potential boundaries of malpractice liability for offering alternative, complementary, and integrative medicine.

At the same time, the legislation carves out a niche for "the treatment is alternative or complementary to healing
arts services licensed by the state," thus creating a kind of exception to the medical licensing laws.

I had articulated a need for this kind of legislative amendment as early as 1995 in a law review article entitled "A Fixed Star in Health Care Reform: The Emerging Paradigm of Holistic Healing." Here's part of what I wrote:

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]

The article concluded:

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