States have enacted alternative medicine laws (“medical freedom acts”) designed to protect physicians from discipline “solely” based on use of CAM therapies, but they can make an end-run around these laws.
Some state medical boards may still seek to bring to bear the older statutory language, essentially to argue that despite statutes authorizing leeway in providing clinical services outside conventional care, physicians still must comply with conventional standards of care and can be disciplined for providing CAM.
This is complex argument, because it is difficult to say whether the “conventional” standard of care or a mixed, “integrative” standard of care applies to use of CAM. The problem was pointed out by Studdert et. al in their JAMA article in 1998, but it has now become more than theoretical.
Still, although legislatures have not addressed this problem in a way that completely dissolves physicians’ concerns, many have enacted legislation which suggests a legislative intent to provide additional protection precisely for physicians in the situation of caring for patients with chronic or debilitating conditions who find no relief through conventional means.
In recent months, our law office has dealt with a number of matters involving disciplinary investigations by state medical boards concerning use of CAM or other innovative clinical therapies that fall between these regulatory distinctions. We have provided a legal and/or ethics opinion in support of physicians, aiming to reconcile the above and help guide boards away from unwarranted discipline. In two of these cases, the board subsequently dropped its charges, although there is no guarantee that this will happen in every case or in any particular case.
The main point of attack (or rather, defense) is that offering nonstandard care is not necessarily equivalent to providing substandard care. I am grateful to attorney and colleague Alan Dumoff for this insight, although I have argued in Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives, Beyond CAM, and elsewhere that courts should not reflexively equate CAM with fraud, and that malpractice “per se” should not be the rule of law.
Suffice it to say that stronger or perhaps more accurate legislation
is needed if MDs are truly to have the leeway they seek to provide responsible care that includes alternatives. This is why, at Alan’s invitation, I recently wrote Medical freedom legislation: illusory progress? (Alt. & Comp. Therapies 2006; 97-101).
Since CAM is a fluid and shifting definitional category, its edges are expanding to include a range of therapeutic approaches to complex clinical conditions such as chronic fatigue syndrome, chronic pain, etc.
In any event, it is a pleasure to work in the capacity of expert counsel with other lawyers, and affirmation of the work that large law firms are now starting to call for assistance supporting their clients. That is both validation of the work, a sign that the nonprofit think tank effort for legal and regulatory issues in integrative medicine deserves consideration, and simultaneously, a less than desirable sign for those responsibly pioneering at the edge of medicine.