2001 Law Review Author’s Update Appendix: Restrictions on Unorthodox Health Treatments in California: A Legal and Economic Analysis
by Ellen Brown Hodgson
In the 24 years since this law review article was published, the California Medical Practice Act has remained unchanged, with these exceptions: (a) it was moved from Business & Professions Code Sec. 2141 to Sec. 2052 , and (b) the words “or herself” were added after “himself” to reflect a trend toward political correctness. Only one case construing the statute was reported in the intervening years (Northrup v. Superior Court (People), 192 Cal. App. 3d 276 (1987), holding that “treatment of any physical condition” includes activities of members of the Church of the First Born in assisting at childbirth, though uncompensated, where umbilical cords were cut). However, hearing board decisions are subject to judicial review only on an “arbitrary and capricious” or a “rational basis” review standard. Many questionable board decisions therefore go unreported because of limited access to judicial review.
In 1982, after over two years of intensive study, the Board of Medical Quality Assurance proposed legislation for limiting the scope of the Medical Practice Act. The proposal failed in legislative committee in 1983; but its 46-page report was well reasoned, and its arguments have become far more compelling in the intervening two decades, due to a dramatic explosion in the availability and popularity of alternative forms of health care treatment. The Board observed:
[Section 2052 gives] physicians exclusive right to practice all forms of diagnosis and treatment of all physical and mental conditions. Although the section exempts other licensed health professions from this exclusive control of health care in limited ways, it is unlawful for an unlicensed person to offer or provide health care of any sort. Because section 2052 is so all-encompassing, other health occupations must seek legislative exemptions to add to their scopes of practice. As health care science and technology expand, and as lower-level occupations assume more and more complex tasks, there has been an increasing awareness by many that the existing system of regulation is inflexible and cumbersome. In addition, there is a growing movement among consumers to seek alternative types and sources of care which generally are not available from physicians and other licensed professions and occupations.
In the two decades following the Board of Medical Quality Assurance’s proposal, this
“growing movement” has become a landslide. David Perlmutter, M.D., wrote in 1999:
In 1993, the conventional medical establishment received a shocking dose of reality with the publication in the prestigious New England Journal of Medicine of a research report entitled, “Unconventional Medicine in the United States,” by David Eisenberg, M.D. from Harvard Medical School. In this often-quoted report, it was found that about 33.8% of Americans had used at least one of sixteen forms of alternative therapy during the previous year . . . . [A]n estimated $22.6 billion dollars was spent by consumers on services of practitioners of alternative therapies.
By 1997, according to researchers at Harvard Medical School and Beth Israel Deaconess Medical Center reporting in JAMA (The Journal of the American Medical Association) in 1998, visits to alternative practitioners actually exceeded visits to primary care physicians — by a full 60 percent. In 1997, Americans made 627 million visits to practitioners of alternative medicine and spent $27 billion of their own money to pay for alternative therapies. In contrast, they made only 386 million visits to their family doctors. The researchers estimated that half the people in the United States between the ages of 35 and 49 used at least one alternative therapy in 1997 — a growth of 47.3 per cent since 1990. Between 1991 and 1997 the use of herbal medicines in the United States grew by 380 per cent and the use of vitamin therapy by 130 per cent, spectacular growth by any standard. In a commentary, Dr. Wayne Jonas of the Office of Alternative Medicine at the National Institutes of Health in Bethesda, Maryland, said he believed “the increasing popularity of complementary and alternative medicine . . . reflects changing needs and values in modern society in general.” According to Jonas, those changes include an increasing societal skepticism toward traditional medicine, widening public access to health information, and a general rise in interest in spiritual matters.
One reason for this increased skepticism involves newly reported statistics on the hazards of the conventional drug approach to disease. According to another study reported in JAMA in 1998, more than 100,000 deaths now occur annually from legal drugs prescribed and used correctly. That makes pharmaceutical side effects the fourth leading cause of death, following only heart disease, cancer and stroke. Besides outright deaths, two million patients experience adverse drug reactions in hospitals in the United States every year, over one million people are seriously injured there, hospital-acquired blood infections cause 62,000 fatalities, and bypass surgery results in 25,000 strokes a year.
The major source of funding for medical research is the pharmaceutical industry, which has been understandably reluctant to support investigations into lifestyle modifications, vitamins, and other unpatentable products. But a growing number of medical researchers are focusing their attention on natural supplements and remedies and are publishing their work in mainstream journals. The benefits of antioxidants, for example, have now been thoroughly documented by researchers at the Harvard Medical School and similar prestigious institutions. Folic acid, a simple B vitamin, has also been extensively studied in university laboratories and has been found to be effective in preventing or ameliorating heart attacks, strokes, angina, intermittent claudication, atherosclerosis, kidney disease, colon cancer, hearing loss, and Alzheimer’s disease.
In an attempt to monitor the expanding field of medicine, Congress directed the National Institutes for Health to establish the Office of Alternative Medicine (OAM) in 1993. The OAM provides research grants to evaluate the safety and efficacy of alternative modalities. Since its inception, the OAM has funded over ninety research grants totaling over $13 million. Under the 1999 Omnibus appropriations bill enacted on October 21, 1998, Congress established the National Center for Complementary and Alternative Medicine (NCCAM) in place of the OAM. Congress appropriated $50 million to establish NCCAM with the purpose of identifying and evaluating alternative modalities. For Fiscal Year 2000, Congress increased appropriations to $68.4 million to reflect growing interest in alternative care.
This federally-sponsored research has already produced some paradigm-shattering results. In February 2001, for example, a report published under the auspices of the National Institutes of Health found “noteworthy cases of survival” among cancer patients using an herbal therapy known as the Hoxsey treatment, long branded as quackery. Health writer Kenny Ausubel commented in May 2001, “The recent NIH report marks a surprising reversal in the longstanding medical civil war between conventional and alternative approaches. After a long exile, alternative therapies are now ascendant, riding a crest of popular demand, scientific validation, and commercial promise.”
In the 1950s, the American Medical Association branded Harry Hoxsey “the worst cancer quack of the century.” Hoxsey, in turn, said the AMA was a monopoly, a doctor’s union setting medical policies in its own interests. Surprisingly, the federal court agreed with him and he prevailed; yet the Food and Drug Administration still managed to put him out of business in the United States.1 In 1983, after a twenty-year battle, a federal district court again found the AMA guilty of violating the Sherman Antitrust Act, when it openly conspired to eliminate chiropractic.
It is this monopolistic medical union, not consumer advocates, which has been responsible for implementing and maintaining the licensing laws in order to stake out their professional turf. As Lori Andrews observed in the Houston Law Review in 1996:
In many instances, the barriers to the use of alternative providers have been erected due to pressures from their main competitors, physicians. Physicians convince legislatures to restrict the scopes of practice of other providers and pressure prosecutors to bring criminal actions against nonphysician providers. Physician groups have tried to eliminate the practice of various alternative health care providers including acupuncturists, chiropractors, homeopaths, midwives, naprapaths, and naturopaths. In addition, since physicians are the main breadwinners for hospitals, health maintenance organizations, and other health care institutions, they exert a large amount of power over the fashioning of policies to govern these institutions. Physician groups have bullied hospitals into adopting policies that favor physicians and disadvantage or even eliminate alternative health care providers, even when there is no evidence that such policies are necessary to protect patients.
To the extent licensing may once have been necessary to protect patients, this need has been obviated by an explosion in the last two decades in public access to information. According to the informed consent doctrine, patients must be given all material information regarding their medical treatment and, based on that information, may choose whether to accept or reject treatment. The Internet now allows patients seeking information on different types of care to do their own research and make informed health care decisions, without having to rely on the advice of a profession with an increasingly questionable track record. As Hans Larsen observed in International Health News in 1999:
The practice of conventional medicine is intimately tied in with the whole medico-pharmaceutical-industrial complex whose first priority is to make a profit. Although most conventional physicians have “healing the patient” as their first priority, they find it increasingly difficult to do so while operating within the system with its pharmaceutical salesmen, its rule books, its fear of malpractice suits, its endless paperwork to satisfy bureaucrats and insurance companies, and its time pressures.
Although California’s Medical Practice Act continues to grant licensed physicians (along with other certificated groups that have succeeded in caring out a professional niche) a monopolistic right to practice all forms of diagnosis and treatment of all physical and mental conditions, other progressive states have revised their medical practice statutes to restrict this expansive language. Both Alaska and Washington have revised their medical practice statutes to require “demonstrable physical harm” to a patient, even if the modality is “unconventional or experimental,” before finding a practitioner incompetent to practice. Other states require the medical board to show that the alternative modality has “a safety risk greater than the prevailing medical treatment or that the treatment is generally not effective” in order to sanction an alternative provider for the unlawful practice of medicine. Oklahoma’s medical practice statute makes explicit reference to nonallopathic treatment, stating that nothing found within the statute “shall prohibit services rendered by any person … practicing any nonallopathic healing practice.” Similarly, the New York medical practice statute states directly that the Act may not be read to prevent “the physician’s use of whatever medical care, conventional or non-conventional, which effectively treats human disease . . .”
Changes toward greater access to alternative care have been very popular with voters. On January 13, 2000, the Washington Supreme Court in Hoffman v. Regence Blue Shield, 991 P.2d 77 (Wash. 2000), upheld the state’s alternative provider statute, which requires all carriers to offer its enrollees access to alternative healthcare. Washington’s state insurance commissioner stated that “[c]hoice of provider is the biggest single issue in health care” and that “[t]his law is one of the most popular laws ever passed by the legislature.”
Physicians espousing alternative approaches to health care have become quite popular too. As Kathleen Boozang observed in the American Journal of Law & Medicine in 1998:
Some of America’s most famous physicians (if the Best Sellers List serves as a reliable indicator) have achieved notoriety by offering patients an appealing integration of the best that American medical expertise has to offer with natural medicine. The popularity of these physicians signals the beginning of the end of orthodox medicine’s dominance of health care in the United States. Even more remarkable, and perhaps the greatest evidence of alternative medicine’s resilience, is managed care’s increasing willingness to cover complementary health care practices.
A major reason for this willingness is financial. The conventional health care system is
plummeting toward bankruptcy. Andrew Weil, M.D., a professor at the University of Arizona College of Medicine and popular author and lecturer, attributes the current revolution in medical thinking to the health care crisis. The insurance system, he says, is breaking down. There is real desperation in the system and a corresponding willingness to look at alternatives.
Medical costs are now $900 billion annually and metastasizing out of control. Spiraling health care costs have dramatically increased the cost of health insurance; 35 percent of U.S. citizens are either inadequately covered or have no insurance at all. Health care expenditures have also placed a heavy burden on American businesses and the cost of the goods and services they produce. According to The Los Angeles Times, employee health care costs for big business have skyrocketed from single digits to 25 percent and even up to 50 percent of profits in recent years. If employee insurance costs continue to rise, many companies will collapse under the burden. Medicare is predicted to go bankrupt as early as 2010. Mounting evidence collected by the California Medical Association (CMA) and the accounting firm PricewaterhouseCoopers (PWC) points to the imminent collapse of another key element of California’s health care delivery system, the medical group. The system is so dramatically underfunded that as many as ninety percent of California physician organizations are thought to be poised for bankruptcy. Jack Lewin, M..D., chief executive officer of CMA, explains, “Medical groups and independent physicians associations are going bankrupt across the state because HMOs are forcing doctors to do more with less.”
The system is in desperate need of new blood, a transfusion from a form of health care that is less expensive, less dependent on costly machinery, less toxic, and more effective. To over eighty percent of the world’s population, “alternative” medicine is actually the basis of the health care system; but to Western medicine, it represents a totally new paradigm. Where conventional medicine suppresses isolated symptoms or removes diseased areas with surgery, “holistic” medicine treats the whole person, supporting rather than suppressing what the body itself is trying to do. Symptoms are encouraged rather than suppressed, on the theory that they represent the body’s effort to eliminate toxins and reestablish homeostasis. Where conventional medicine’s goal is to heal from the outside in through the use of drugs, surgery and radiation, alternative medicine’s goal is to trigger the innate healing abilities of the body, healing from the inside out. Alternative medical systems, almost without exception, accept that the body is suffused by a network of channels that carry a subtle form of life energy. Imbalances or blockages in this energy are what lead to disease, and clearing the blockages and strengthening the energy is the ultimate goal of health care. Alternative medicine is less toxic because it is more natural; is more effective because it works with rather than at cross purposes with the body; is less expensive because it uses remedies found in nature, which by law cannot be patented.
The existing language of the California Medical Practice Act is wholly inadequate for dealing with the current revolution in health care. Not only are licensed M.D.s not the only people competent to practice all forms of diagnosis and treatment of all physical and mental conditions, they are typically not competent at all to deliver alternative care. M.D.s have not been trained in homeopathy, chiropractic, Ayurvedic medicine, craniosacral therapy, Chinese medicine, herbology, and a burgeoning host of other non-traditional disciplines. As the California Board of Medical Quality Assurance proposed in its earlier legislative draft, the licenses of medical doctors should be exclusive only for those things for which they have been exclusively trained: prescribing drugs, performing surgery, administering radiation, and performing invasive instrumentation.
The Board later added “diagnosing disease” to this list, but if added, this provision would need to be narrowly defined. Take this personal instance: In the 1970s, two different medical doctors were unable to diagnose the numbness in this author’s wrists as carpal tunnel syndrome (then a little-recognized condition). A neighbor, who had the same condition, correctly diagnosed it and said that wrist guards would allow me a good night’s sleep, which they did. Was she illegally diagnosing and prescribing?
An alternative practitioner might diagnose a condition as “energy imbalance” that Western medicine recognizes as something else. If the practitioner successfully corrects that imbalance, who is to say the diagnosis was wrong? Medical research increasingly challenges the “cure” rates of conventional medicine, and its failure and side effect rates are daunting. To the argument that alternative treatment delays conventional treatment, alternative practitioners counter that conventional treatment weakens the immune system with toxic drugs and radiation or destroys organs by surgery, preventing effective alternative treatment (which needs a viable immune system to work). Informed consumers should have the right to elect between alternative medical theories and go with the system they feel best suits their needs.
Tort law adequately protects the public from harm. As Michael Cohen writing in the Arizona Law Review in 1996 observed, the appropriate remedy for tort violations is not imposing criminal sanctions on alternative providers straying into the practice of medicine as defined by the state medical practice statutes, but making them liable for damages in tort for any resultant injury. A recent study published in JAMA noted that malpractice claims against alternative practitioners have been substantially less frequent and less severe than those made against conventional practitioners.
In a free market system, competition drives providers to offer improved services at lower costs. Only by allowing alternative medicine to operate within the mainstream will an element of challenge be brought back into the health care market, an element that has been missing due to conventional medicine’s monopolistic market control. Medical doctors should have the exclusive right to call themselves by that title and to do those things in which they are exclusively trained. Beyond that, the public interest not only is not served but is critically impaired by restrictive medical licensing laws.
Ellen Hodgson Brown
August 13, 2001