It is with some trepidation I venture into the next subject in this series — malpractice law. This is a touchy subject for healthcare providers, for obvious reasons. Regardless of the flaws in the system, however, malpractice law is one of the mechanisms put in place by government to regulate the practice of medicine. Like the other such mechanisms touched on so far, licensure and scope of practice law, malpractice laws apply to alternative medicine practices in ways that are broadly similar, but sometimes subtly and significantly different, from how they apply to scientific medicine.
So far, alternative practitioners are sued for malpractice relatively infrequently compared with physicians, presumably because they represent a much smaller fraction of the care provided, they tend to be utilized by those with an ideological bias in favor of their approaches, and they are not viewed as nearly as rich a target for litigation. But this may change if the political and cultural winds blow in the direction of greater utilization of alternative medical approaches.
This post is intended to illustrate a bit about how medicine, including alternative medicine, is defined and limited legally by state licensure. This is, of course, an enormous topic, especially given the variety of laws and regulations among the 50 states and District of Columbia, and the many, often mutually inconsistent, court decisions interpreting them. A comprehensive survey would resemble Gibbon’s history of Rome and would likely be out-of-date the moment it was finished. My more modest goal here is to highlight a few of the ways in which licensure and scope of practice laws intersect the practice of CAM and give a few representative examples.
The Rise of Medical Licensure
In the 19th century, a bewildering variety of different approaches to maintaining health and treating disease competed for the trust, and dollars, of prospective patients (or their owners, in the case of animal patients). Caveat emptor was the rule in an unregulated medical marketplace. Mainstream medicine was a competitor in this marketplace, though it was hardly science-based to any great extent compared to conventional medical practices today. Homeopathy was another pretty big player, along with osteopathy and numerous other more or less organized schools, as well as many individual snake oil salesmen, faith healers, local providers of folk remedies, and so on.1,2
When I write or talk about the scientific evidence against particular alternative medical approaches, I am frequently asked the question, “So, if it doesn’t work, why is it legal?” Believers in CAM ask this to show that there must be something to what they are promoting or, presumably, the government wouldn’t let them sell it. And skeptics raise the question often out of sheer incredulity that anyone would be allowed to make money selling a medical therapy that doesn’t work. It turns out that the answer to this question is a complex, multilayered story involving science, history, politics, religion, and culture.
While we science types tend to be primarily interested in what is true and what isn’t, that is a sometimes surprisingly minor factor in the process of constructing laws and regulations concerning medicine. What I hope to do in this series of essays is look at some of the major themes involved in the regulation of medical practice, particularly as they relate to alternative medicine. I will begin by touching on some of the general philosophical and legal issues that have defined the debate among the politicians and lawyers responsible for shaping the legal environment in which medicine is practiced. The I will review some of the specific domains within this environment, including: medical licensure and scope-of-practice laws; malpractice law; FDA regulation of drugs, homeopathic remedies, and dietary supplements; truth-in-advertising law; and anti-trust law.
On this site there have been several thoughtful posts (e.g. by Dr. Atwood and by Dr. Novella), and subsequently much heated commentary, on the distinction between Evidence-Based Medicine (EBM) and Science-Based Medicine (SBM). I agree wholeheartedly with the position that the two are not mutually exclusive, and that SBM is essentially EBM as it should be practiced, with a comprehensive consideration of all relevant evidence, including the subject of plausibility. As a practicing veterinarian, and an officer of the Evidence-Based Veterinary Medicine Association (EBVMA), I am keenly interested in bringing to my profession a greater reliance on high quality research evidence and sound scientific judgment, and reducing the reliance on individual practitioner intuition and experience in making clinical decisions. However, those of us in veterinary medicine face some special challenges which make the subtle but important distinction between EBM and SBM especially salient.
Some of the most rewarding interactions we have with our pets involve food. Most dogs respond with gratifying enthusiasm to being fed, and this activity is an important part of the human-animal bond. Providing food is also part of the parent/child dynamic that in many ways characterizes our relationships with our pets. Giving food is an expression of affection and a symbol of our duty of care to our pets.
Because of these emotional resonances, pet owners are often very concerned about giving their pets the “right” food to maintain health and, if possible, to prevent or treat disease. This has allowed the development of a large, and profitable commercial pet food industry that aggressively markets diets with health-related claims. This industry resembles in some ways the pharmaceutical industry. It is regulated by the FDA, and also by individual states, according to a somewhat Byzantine set of standards established by the FFDCA (the guiding document governing the FDA) and by the Association of American Feed Control Officials (AAFCO), a private organization made up primarily of state and federal feed control officials. Thanks to this regulatory structure, imperfect though it is, there is a good deal of solid science and research behind the products and claims the industry produces.