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Is “CAM” Fraud?

During my continuing education about so-called “complementary and alternative” medicine one question presents itself in my mind over and over: Isn’t that fraud? Well, is it?

And by “CAM,” I mean …

The book Snake Oil Science, by R. Barker Bausell, defines “Complementary and Alternative” therapies as “physical, mental, chemical, or psychic interventions … practiced in the absence of both

  • scientific evidence proving their effectiveness and
  • a plausible biological explanation for why they should be effective,

and their practice continues unabated even after

  • …there is scientific evidence that they are ineffective and
  • …their biological basis is discredited.”

(Emphasis added.)

Science Based Medicine has given us an abundance of examples supporting Dr. Bausell’s definition: homeopathy, subluxation-based chiropractic , energy healing , acupuncture , and so on.

Fraudulent Misrepresentation

Unfortunately for ‘CAM” products and practitioners, there is no equivalent of “alternative medicine” in the law.   “Conventional law” will have to do for our analysis.  In “conventional law,” fraud can be a crime, a breach of contract or a tort.  Here we will confine our analysis to fraud as a tort, that is, a private or civil wrong, independent of contract, and more particularly the tort of fraudulent misrepresentation.

Tort law varies from state to state, and a discussion of the law of fraudulent misrepresentation in all 50 states (plus assorted other U.S. jurisdictions) is beyond the scope of this post.  However, the Restatement of Law 2d, Torts,1 [hereinafter, the Restatement] is widely regarded as the best compilation of current law on the subject.   “The Restatements … are famous as an effort to bring analytical coherence into nonstatutory fields of law otherwise marked by a flood of discrete instances and judicial rationalizations of divergent results.”2 Where the law is in flux, they offer recommendations based on policy grounds. The Restatements of various areas of the law (Torts, Contracts, Agency, and so on) are highly respected and often cited in court opinions.

According to the Restatement, Sec.  525, if A

  1. fraudulently makes a misrepresentation of fact, opinion, intention or law to B
  2. for the purpose of inducing B to act (or refrain from acting),
  3. A is liable to B for  B’s monetary loss
  4. caused by B’s justifiable reliance on the misrepresentation.

“Monetary loss” includes loss caused by physical harm in cases where there is a duty to disclose a fact.  Restatement, Sec. 557A.  “Misrepresentation,” as you might guess, means that the representation is “untrue,” “not in accordance with the facts.”3 Actions for fraudulent misrepresentation (as distinct from malpractice) have been successfully maintained against health care providers, including M.D.s, dentists and chiropractors.4

Let’s consider more closely that first element: under what conditions is a misrepresentation considered fraudulent?  That is largely a question of intent (or “scienter”). But, contrary to what some may think, actual lying is not required to hold one accountable.  According to the Restatement, Sec. 526,

A misrepresentation is fraudulent if the maker

  1. knows or believes that the matter is not as he represents it to be,
  2. does not have the confidence in the accuracy of his representation that he states or implies, or
  3. knows that he does not have the basis for his representation that he states or implies.

Subsection (a.) describes what we colloquially call “lying.”  But subsection (b.) and (c.) do not require actual knowledge that one’s statement is false to impose liability. According to the Restatement’s comments to Sec. 526, which further explain its meaning, A cannot state to B that X is a fact when A merely believes it is a fact but recognizes there is a good chance it is not true.  This is sometimes referred to as making a statement “recklessly,” careless as to whether it is true or false.   Nor can A tell B that he knows X to be a fact based on his personal knowledge or investigation, or imply that this is the case, when A actually has no personal knowledge or has not made an investigation, even where A is honestly convinced of the truth of his representation.

Misrepresenting Science

Lack of scientific evidence as misrepresentation

To understand “CAM” in the context of fraudulent misrepresentation, let us first consider the sale of goods and services outside the “CAM” area.  Will the lack of scientific evidence for a product’s or service’s claims support a cause of action for fraud?

The tobacco cases provide an excellent example of how one industry misrepresented the scientific evidence and got burned for its efforts.    Here, we’ll look at just one of the many cases brought against a tobacco company for, among other things, fraudulent misrepresentation.

In Henley v. Philip Morris,5 the defendant tobacco company claimed on appeal that there was insufficient evidence to support the jury’s finding of liability on plaintiff’s claim of fraudulent misrepresentation.  The court thoroughly rejected that argument:

Our review of the record satisfies us that there was substantial evidence that [defendant] engaged in a conscious, deliberate scheme to deceive the public,  … about the health hazards and addictive effects of cigarette smoking. The jury could properly find that … defendant and other cigarette manufacturers acted both in concert and individually to issue innumerable false denials and assurances concerning the dangers of smoking, deliberately fostering a false impression by the public … that assertions of health risk were overblown … , that any real hazards had yet to be shown, and that the industry itself was acting and would act diligently to discover the scientific truth of the matter and promptly disclose its findings, good or bad. The jury could also find that plaintiff   … was falsely led to believe, as defendant intended, that there was a legitimate ‘controversy’ about whether cigarettes actually caused cancer or carried any other serious health risks.

Does this remind anyone of another fairly recent controversy regarding the safety of a certain “CAM” procedure, discussed here, here
and here?

In addition, defendant argued that its statements were “opinions,” not statements of fact, and were therefore not actionable.  That argument was equally unpersuasive to the court:

This argument relies on the general rule that statements of opinion will not support an action for fraud, while ignoring the exception … applicable to any statements of opinion: ‘[W]hen one of the parties possesses, or assumes to possess, superior knowledge or special information regarding the subject matter of the representation, and the other party is so situated that he may reasonably rely upon such supposed superior knowledge or special information, a representation … though it might be regarded as but the expression of an opinion if made by any other person, is not excused if it be false.  … Further, if a statement of opinion ‘misrepresents the facts upon which it is based or implies the existence of facts which are nonexistent, it constitutes an actionable misrepresentation.’ … The jury here was entitled to find that insofar as any of defendant’s statements constituted opinions, they implied the existence of superior knowledge as well as a state of facts that did not exist.

In another example, a number of claims for fraud were brought against Amoco for false advertising arising out of Amoco’s assertions regarding its gasoline’s benefits.6 In one of these cases, plaintiff claimed that the following representations were “made without any competent and/or scientific substantiation”:

‘The clear color of Amoco Ultimate gasoline demonstrates the superior
engine performance and environmental benefits Amoco Ultimate provides compared to other premium brands of gasolines that are not clear in color;

A single tankful of Amoco Silver or Ultimate gasoline will make dirty or clogged fuel injectors clean … ’

Do you notice a certain similarity between Amoco’s second claim and those made for colonic irrigation?

Thus, the answer is yes, as common sense would indicate, lack of scientific evidence, or distortion of the actual evidence, for a product or service will support a cause of action for fraudulent misrepresentation.  Even if the misstatement would otherwise qualify as an opinion, it is actionable fraud if the statements imply superior knowledge and are based on non-existent “facts.”

Implausibility as misrepresentation

It is difficult to find cases discussing the other element of Dr. Bausell’s “CAM” definition—lack of a plausible basis in science (as opposed to lack of scientific evidence for claims about the product or service).  Of course, outside of ‘CAM,” what sort of product or service would fit that description?    Levitation  lessons?  A perpetual motion machine?  Man-capturing  perfumes? In fact, yes, all of these have elicited the judicial equivalent of “you gotta be kidding!”

In Hendel v. World Plan Executive Council and Maharishi International University,7 plaintiff sued for fraud arising out of defendants’ claims that, according to her complaint, courses in Transcendental Meditation would allow her to “attain certain extraordinary powers, such as clairvoyance, ability to levitate, ability to fly, invisibility, and superhuman strength.” In addition, she “would ultimately become a ‘Master of Creation’ with the ability to manipulate the physical world and the laws of nature.”

The court did not reach the merits of her fraud claim, finding instead that her suit was barred by the statute of limitations.   However, in reaching that conclusion, the court did remark that defendants’ representations were such that “any reasonable person would recognize as being contrary to common human experience and, indeed, to the laws of physics.” This meant plaintiff should have been on notice earlier that she was being defrauded.

Similarly, in Waterman v. Haumaier,8 the laws of physics prevented one party from claiming he could justifiably rely on representations in an agreement which “closely approach the concept of the perpetual motion machine … [S]uch machines  … are impossible in light of the First Law of Thermodynamics,” citing Handbook of Chemistry and Physics (64th ed. Weast 1983).

Less specifically, but equally based on scientific implausibility,  in Gottlieb v. Schaffer,9 the court found that various perfumes the seller claimed would allow the wearer to “control men” (“Desire” perfume), to make a man “stay close to you” (“Nirvana”), “make men obey you” (“Command”), and so on, were so “patently absurd” that no proof of their falsity or intent to deceive was necessary due to “the universality of scientific belief that [such] advertising representations are wholly unsupportable.”   The Gottlieb case was decided in 1956, which makes me think the perfume seller was simply ahead of his time and could have marketed his product as a combination of aromatherapy and energy medicine in today’s market.

Thus, both the lack of a plausible basis in science and the lack of scientific evidence for claims made for products or services are well-recognized as “misrepresentations” which will  support a cause of action for fraud.   Now let’s apply the law of fraudulent misrepresentation to a few hypotheticals involving “CAM.”

B, the poor devil10

Acupuncture

Imagine that A is an M.D. practicing family medicine.  His patient, B, has long complained of back pain, but has not found relief in any of the remedies A has prescribed.  The doctor, being an “integrative” practitioner, suggests acupuncture, which he has learned to perform, might help B’s pain, adding that he has “seen it work” in other patients.  B justifiably takes all of this to mean that acupuncture is an effective treatment for back pain, and relies on that representation.  B undergoes a series of 12 treatments, which costs about $1,200. In fact, A is aware, from his undergraduate education in the sciences and his medical education and training, that the basic principles of acupuncture are highly implausible and, having reviewed the literature, knows there is no good evidence that it is effective. Thus, A knows that his express and implied representations of the effectiveness of acupuncture for back pain are “not as he represents [them] to be” within the meaning of Sec. 526(a). Therefore, all the elements of a cause of action for fraudulent misrepresentation under Sec. 525, are present.

Naturopathy/Homeopathy

Next, let’s suppose that A is an N.D. licensed to practice naturopathy in her state.  B, her patient, has the flu, so A prescribes oscillococcinum, which she describes to B as a homeopathic flu remedy.  A, having taken classes in chemistry and physics, has her doubts about homeopathy, but she does not express them to B. B justifiably relies on A’s advice because A is a licensed health care provider.  B takes the homeopathic remedy, but continues to suffer because, as we know, homeopathic remedies cannot be, and have proven not to be, effective.  As a result, B is out the cost of the remedy plus additional monetary losses due to the physical harm caused by ineffective treatment, which delays her seeking medical care for the flu, which progresses into pneumonia.   A’s conduct has thus satisfied the definition of fraudulent misrepresentation under Sec. 526, subsection (b), as she knew when she prescribed  oscillococcinum that homeopathy is inconsistent with the laws of chemistry and physics and therefore could not be confident that it was, in fact, an effective remedy.  In other words, she did “not have the confidence in the accuracy of [her] representation that [she] states or implies.”  All the elements of a cause of action under Sec. 525 are present.

Chiropractic

Assume A is a D.C.  B visits his office for the first time, complaining of headaches.  A explains to B that he is suffering from subluxation of a cervical vertebrae, the cause of his “cerviocogenic headache,” and that cervical manipulation will reduce the subluxation, thereby allowing the body’s self-healing ability to function properly.  B asks A about the safety and effectiveness of this treatment.  A responds that “the scientific evidence for the safety and effectiveness of chiropractic care is overwhelming.”  He adds that “over the past twenty years, many controlled clinical research studies have shown that chiropractic care is safe and effective for back pain, neck pain and headaches.”11 B justifiably relies on these statements due to the chiropractor’s presumed superior knowledge on these subjects.

In fact, A has not reviewed the recent literature on the scientific validity of the chiropractic subluxation, which does not support its existence. Nor has he reviewed the recent literature on the safety and effectiveness of cervical manipulation for headaches, which does not support his unequivocal statement.   He is simply repeating statements in a patient brochure he purchased in bulk for his office. Unfortunately, the cervical manipulation causes B to suffer a vertebral artery dissection and subsequent stroke, resulting in lifelong disability.  A’s conduct satisfies the definition of fraudulent misrepresentation as he did not actually investigate the literature and therefore “knows that he does not have the basis for his representation that he states or implies.”  This is so even though he “is honestly convinced of its truth from hearsay or other sources that he believes to be reliable.”  Restatement, Sec. 526(c), and comment (f).  All the elements of a cause of action for fraudulent misrepresentation under Sec. 525 of the Restatement are present.

Reiki

Finally, assume A, a licensed massage therapist in her state and a reiki practitioner, places an ad for her services in the newspaper, and is contacted by B, who asks for more information.   A tells B that reiki is based on the idea that there is a universal, or source, energy that supports the body’s innate healing abilities. Practitioners seek to access this energy, allowing it to flow to the body and facilitate healing.  A adds that people use reiki for relaxation, stress reduction, and symptom relief, in efforts to improve overall health and well-being and that reiki has been used by people with anxiety, chronic pain, HIV/AIDS, and other health conditions, as well as by people recovering from surgery or experiencing side effects from cancer treatments. A tells B that if it is inconvenient for her to come in, A can practice reiki from a distance, that is, when B is not physically present in the office. B tells A she suffers from chronic anxiety and pain and schedules an appointment.  A tells B after her first session that the standard for treatment is at least four sessions of 30 to 90 minutes each.12 B ultimately ends up attending 10 sessions, and having reiki performed without her presence twice, which costs her $1,000 total.

In a departure from the previous hypotheticals, it is not certain that B can satisfy all the elements of proof to succeed on a claim of fraudulent misrepresentation against A.  A’s description of reiki’s purported mechanism of action is clearly contrary to the laws of physics, so much so that one can argue the average person should be aware of its implausibility.  Even if B can prove that A knew, or should have known this, reiki’s very implausibility might keep B from being able to prove she justifiably relied on A’s statements, as was the case in WatermanHendel, although decided on a different issue, points to the same result.  However, for the purposes of our discussion below, let’s assume the facts in this hypothetical satisfy all the elements of a cause of action for fraudulent misrepresentation under Sec. 525.

A license to defraud?

I’ve concluded that all the elements of a cause of action for fraudulent misrepresentation are present in each hypothetical.    However, that is not the same as concluding the plaintiff will succeed (assuming he or she can prove the allegations of the complaint) because in any suit the defendant can plead and prove an “affirmative defense” which defeats the plaintiff’s claim.  By way of example, one common affirmative defense is failure to bring an action within the time provided by the statute of limitations, as was the case in Hendel, above.   Ms. Hendel may have had a textbook claim of fraudulent misrepresentation against the defendants,   but because she waited too long to bring her suit, the defendants won on their affirmative defense that her claim was barred by the statute of limitations.

So what affirmative defense might be raised to defeat claims of fraudulent misrepresentation brought by B against A?

Again we turn to the …

Restatement:

“Sec. 890 Privileges

“One who otherwise would be liable for a tort is not liable if he acts in pursuance of and within the limits of a privilege …”

Sec. 10 of the Restatement further describes the types of consent and how they are created.  Some privileges are based on the consent of another.  The most familiar of these to readers of SBM is likely consent to medical treatment, so that the person who cuts one open with a sharp object will not be liable for battery if that person is a surgeon and one has consented to the surgery.  We are not talking about that kind of privilege here even if consents to treatment were obtained as consent induced by fraud is invalid.

Other privileges are nonconsensual, and they can be either conditional or absolute.  These privileges allow the A’s of the world to adversely affect the legally protected interests of the B’s of the world without their consent and to avoid liability for doing so.  Absolute privilege is not applicable here.  It is the conditional privilege which may form the basis of an affirmative defense in our hypotheticals.

“A person ‘who otherwise would be liable for a tort is not liable if he acts in pursuance of and within the limits of a privilege.’ … The term ‘privilege’ denotes the existence of circumstances that justify, or excuse, conduct that would ordinarily subject the actor to liability… . Conduct that would otherwise be actionable is held to be privileged as a matter of law where, under the circumstances, it furthers an interest of social importance.”  Schultz v. Elm Beverage Shoppe,13 quoting, Restatment, Sec. 890.

However, a person is liable for any acts that are in excess of those permitted by the privilege.  Thus, if A acts in self-defense during an attack by B, the privilege of self-defense against attack by another would protect him from liability for injury to B.  But if A uses excessive force he has exceeded the scope of his privilege and the privilege will not protect him from liability for injuries caused by his use of unnecessary force.  Restatement, Sec. 890, comment e.

Privileges can be based on a constitutional or statutory provision protecting the alleged wrongdoer’s interests even where the creation of the privilege is not specifically mentioned.14 A familiar example is the privilege protecting the media from a claim of defamation where the defamatory statement was published without malice or reckless disregard of the truth (and a few other requirements).  This privilege is recognized by the courts to protect First Amendment freedoms, although obviously you don’t find actual language to that effect in the First Amendment.

The defendants in our hypotheticals can raise the affirmative defense of conditional privilege. The M.D., N.D., D.C. and L.M.T. would all argue that because their practice acts incorporate a right to perform the procedures which the patients claim are fraudulent, the practice acts create a privilege.   In other words, the state legislatures, by incorporating implausible and evidence-free practices into the law, are protecting these practitioners from liability even if their patients can prove their representations are untrue and were made with the requisite intent to deceive.

The D.C. and the N.D. appear to have the best case for defeating the patient’s claim of fraudulent misrepresentation, as their practice acts incorporate their science-and-evidence-free procedures. All state chiropractic acts either explicitly or implicitly allow chiropractors to detect and correct “subluxations.”15 However, any privilege afforded by the practice act obviously would not extend to statements regarding the safety of cervical manipulation as that subject is not specifically addressed in the act.  Likewise, because the naturopathy practice acts allow the use of homeopathy, the N.D. can plead privilege as an affirmative defense, although it could be argued that she exceeded the scope of her privilege by not disclosing her doubts about homeopathy.

The L.M.T’s claim of privilege would depend on whether her state included reiki in the definition of massage practice.  If it does, the court could find that the statute creates a privilege.  If not, there would no statutory basis for it, although she might argue that by virtue of the state’s allowing practices “taught in massage schools” (as some do) the practice act implicitly affords a privilege if her massage school training included reiki.

The M.D. is on shakier ground.   While some states have enacted statutes protecting physicians to a certain extent in using “CAM”16 it is unlikely those would protect an M.D. who believed in neither the plausibility nor effectiveness of the treatment but, at least impliedly, represented otherwise to the patient.   In addition, some of these statutes protect a physician solely from disciplinary action for using CAM and arguably create no privilege in a civil action. Thus, even though the M.D.’s scope of practice is broad, it does not insulate physicians from knowingly making false claims about a therapy.

In response to claims of privilege, plaintiffs could argue that a nonconsensual privilege which defeats their right to recover damages for fraudulent misrepresentation should not be recognized unless it protects some important public interest. Restatement, Sec. 10, comment (d.); Sec. 890, comment (a.).  Certainly there is no important public interest served by allowing health care practitioners to make demonstrably false representations to patients.

Conclusion

So, is ‘CAM’ fraud? According to the Snake Oil Science definition, it most certainly is misrepresentation.  Whether it is fraudulent misrepresentation depends on whether one of the three elements required for establishing fraudulent intent can be proved: knowing misrepresentation, reckless misrepresentation, or stating (or implying) a basis for the misrepresentation that one does not actually have.   As criticism of CAM for scientific implausibility grows and study after study fails to support claims of effectiveness, we may reach a point where it becomes impossible for the CAM practitioner to avoid knowing that CAM is based on misrepresentations, making it much harder to defeat claims of fraudulent misrepresentation.  Key to this will be the courts’ refusal to interpret the state practice acts as creating a privilege which allows CAM practitioners to avoid liability for defrauding their patients.

References

  1. Restatement of the Law 2d, Torts, American Law Institute (1979) Return to text
  2. U.S. Nat. Bank of Oregon v. Fought, 630 P.2d 337, 352 (Or. 1982) (Linde, J., concurring). Return to text
  3. Black’s Law Dictionary (4th Ed. 1968) Return to text
  4. Ohlsson GL, Malpractice Considerations in Complementary Medicine, in Louisell & Williams, Medical Malpractice, Sec. 17D.04 (Matthew Bender 2010) Return to text
  5. 114 Cal. App. 4th 1429, 1465-66, 9 Cal. Rptr. 3d 29, 62 (Cal. App. 1st Dist. 2004), cert. den., 544 U.S. 92, 125 S. Ct. 1640 (2005) Return to text
  6. Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 156, n. 2 (Ill. 2002) Return to text
  7. 705 A.2d 656 (D.C. App. 1997) Return to text
  8. 222 B.R. 40, 1998 U.S. Dist. LEXIS 10124 (S.D.N.Y. 1998)141 F.Supp. 7 (S.D. N.Y. 1956) Return to text
  9. Because B, through no fault of his own, is the second letter in the alphabet, he is constantly subjected to A’s actions, both devious and innocent, in the legal literature: A sells B real property A doesn’t own, rear ends B in traffic, shoots B in self-defense, fails to deliver goods B has purchased, and so on. Return to text
  10. This is actually a direct quote taken from a video about the safety and effectiveness of chiropractic featuring Rick McMichael, D.C., described as the president of the American Chiropractic Association. The video appears on the Sharecare website. http://www.sharecare.com/question/chiropracticcareeffective According a Sharecare press release, the site was created by Dr. Mehmet Oz and Jeff Arnold. Return to text
  11. http://static.sharecare.com/docs/SharecareLaunchRelease100710.pdf?v=47 Return to text
  12. This description is taken almost verbatim from the NCCAM website. “Reiki: An Introduction,” http://nccam.nih.gov/health/reiki/introduction.htm. Return to text
  13. 40 Ohio St. 3d 326; 533 N.E.2d 349, 351 (1988) Return to text
  14. See, e.g., New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964) Return to text
  15. Bellamy JJ, Legislative Alchemy: the state chiropractic practice acts, Focus Alt & Comp Ther; 15: 214-222 Return to text
  16. Cal Bus & Prof Code Sec. 2234.1 (2010); Fla.Stat. Sec. 456.41 (2010) Return to text

Posted in: Science and Medicine

Leave a Comment (83) ↓

83 thoughts on “Is “CAM” Fraud?

  1. Epinephrine says:

    I’ve come to similar conclusions, myself, and I’ve actually reported CAM practitioners for health fraud. In Canada, one group responsible for investigating such matters is the Competition Bureau. In the past, the Competition Bureau has had camapigns targeting cancer fraud and weight-loss; I am hoping that CAM can be targeted if enough pressure is applied.

    From the criminal perspective, it might be hard to prove criminal fraud, as establishing mens rea would be tricky, particularly as most practitioners believe what they peddle (or at least, they can claim to). The Competition Bureau, on the other hand, acts through the Competition Act. For example, on misrepresentations to the public, the Competition Act states

    74.01 (1) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever,
    (a) makes a representation to the public that is false or misleading in a material respect;
    (b) makes a representation to the public in the form of a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof, the proof of which lies on the person making the representation;

    (emphasis mine)

    Under this Act the onus is on the practitioner to demonstrate the truth of his/her claims, with no allowances for what he/she believes.

  2. windriven says:

    Great stuff!

    “I’ve concluded that all the elements of a cause of action for fraudulent misrepresentation are present in each hypothetical. However, that is not the same as concluding the plaintiff will succeed”

    This actually gives me a little hope. Here’s why: the tobacco suits that you cited would have never come to successful conclusion without the deep pockets of the tobacco companies; the batteries of lawyers and expert witnesses wouldn’t have been assembled without the incentive of a spectacular judgment. Complex lawsuits are incredibly expensive to press and to defend.

    The deep pockets idea suggests that sooner or later one of the major medical centers that dabbles in dreams and voodoo will get hammered in a class action suit. If the plaintiffs are successful it will cause the rest of the professional medical system to rethink its position on sCAMing.

    Quacks and snake oil salesmen are like cockroaches – you’d wear out your feet trying to stamp them out. There are too many of them and few of them have sufficient resources to invite an all out legal assault. Major multi-unit medical centers are another thing entirely.

    Medicine needs to reestablish the sharp line between its practice and shamanism. This blog sometimes debates the fine points separating SBM from EBM. It seems to me more pressing for the medical profession to distance itself from the pure BM of CAM.

  3. rbnigh says:

    There are some well-taken points here. Yet the post is an example of the kind of ‘stacking the deck’, framing the discussion that assumes the points before the discussion is opened, that one often finds on this blog.

    If we start out with CAM as defined by Bausell– practices with no scientific basis for their effectiveness and without plausible biological explanation–then we eliminate from the discussion possible non-fraudulent and effective CAM practices. What would these be? For example, nutrition based therapies for conditions such as diabetes, therapies of which most graduates of medical school are woefully ignorant. Other legitimate CAM practices would be those based on traditional medical practices that don’t conform the pharmaceutically-based medical practice dominant in US medicine. For example, medicinal herbs in the Precolumbian Aztec pharmacopia have been found to have the physiological effects attributed to them by traditional healers in 70% of cases. (this was reported in Science a few years ago)

    Also we need to evaluate ‘healing’ practices around the world, not just be encased in our notions of what is ‘biologically possible’.
    There are many healing practices that could be classified as CAM, widely practiced by regular people from many cultures, that are neither fraudulent nor biologically impossible. If we close down the discussion to CAM=fraud at the outset, we eliminate the option of evaluating these scientifically, and thus the opportunity to learn something new and possibly valuable.

  4. Jann Bellamy says:

    We are having a bit of trouble translating my Word document into HTML so please bear with us. I will respond to comments as soon as we are able to fix this. Thanks for your patience.

  5. windriven says:

    @rbnigh-ted

    Stacking the deck? You betray an appalling misunderstanding of science in your opening paragraph. Science provides, among other things, an impartial framework to examine the safety and efficacy of a putative therapy.

    And then: “possible non-fraudulent and effective CAM practices. What would these be? For example, nutrition based therapies for conditions such as diabetes…”

    What are you talking about? Diet is an essential component of diabetes management and has been for as long as I have known diabetes sufferers.

    “Other legitimate CAM practices would be those based on traditional medical practices that don’t conform the pharmaceutically-based medical practice dominant in US medicine.”

    This is cant, not an argument. In the first place you throw out a nebulous “other legitimate CAM practices” without naming them or providing any proof of their efficacy. And you totally ignore the fact that a portion of the “pharmaceutically-based” medicine is derived from folk medicines that have been scientifically studied, their active components isolated, dosing for efficacy and safety studied, and finally presented as medicine. Do you seriously believe that chewing willow bark is a better idea than taking aspirin???

    And then: “There are many healing practices that could be classified as CAM, widely practiced by regular people from many cultures, that are neither fraudulent nor biologically impossible.”
    People from many cultures believe in zombies, werewolves, shamanism, ghosts, every flavor of god imaginable, voodoo, santeria, and reiki. Does that make them real? People do all sorts of crazy crap when they don’t have better alternatives. Scientific medicine IS the better alternative.

    And finally: “If we close down the discussion to CAM=fraud at the outset, we eliminate the option of evaluating these scientifically”

    No one is closing down anything. If you’ve got the cash you can fund any study you’d like. But research dollars are finite. Do we as a society spend those finite dollars studying faith healing or, say, the genetics of muscular dystrophy?

  6. Scott says:

    If we start out with CAM as defined by Bausell– practices with no scientific basis for their effectiveness and without plausible biological explanation–then we eliminate from the discussion possible non-fraudulent and effective CAM practices.

    I would be interested to know what other definition you advocate. As a very general practice, anything that IS scientifically demonstrated to be effective, or at least has sufficient plausibility to be worth considering, is accepted by, and becomes part of, mainstream medicine. Certainly, our perspective here is that it SHOULD even if there might be occasional examples where that doesn’t happen as quickly as it perhaps ought.

  7. marcus welby says:

    rbnigh: the 70% short term benefit in relief of subjective symptoms is the standard for almost any placebo treatment. Sham accupuncture using toothpicks pressed against the skin, random needle insertion, classical Chinese needle insertion along chi pathways, all have about 70% short term subjective benefit.

  8. windriven says:

    @ the bnigh-ted one

    When AIDS broke into the public consciousness in the 80′s it was a death sentence. In a mere thirty years science and medicine have developed HAART allowing most AIDS sufferers to live largely normal lives.

    Please name one non-’pharmaceutically-based medical practice’ that has shown similar efficacy. Don’t like AIDS? Same question for pneumonia, diabetes, breast cancer, inguinal hernia, gastric ulcer … or you choose your own.

  9. Jan Willem Nienhuys says:

    Epinephrine is correct according to me. Criminal charges can’t stick if you cannot prove the intent to deceive. In the Netherlands some time ago the Association against Quackery (VtdK) drew up (as a publicity stunt) a list of the top twenty Dutch quacks of the 20th century.

    They concluded that the criterium ‘intent to deceive’ is very impractical. Indeed, there seems to be no limit to the silliness of things people can believe. So they gave a complicated definition of quackery:
    1. is related to treating, advising and/or diagnosing people with respect to sickness and health.
    2. not based on empirical or theoretical tenable basis
    3. done as a profession.

    There were more points related to cooperation with other health professionals, and a cop-out for treatments without scientific basis, but in accordance with contemparary consensus (remember, they were trying to compare quacks from 1910 with quacks still active in 2000).

    All the same they were sued by one lady on their list, who argued that ‘quack’ has a negative connotation, so the VtdK was damaging her business, which was a kind of chiropractic. It cost the VtdK about 100,000 euro in lawyer’s costs, and it went all the way to the Dutch Supreme Court. The Supreme Court judged that quack, yes it is a bad word, but the VtdK carefully explained what they meant and could not be held responsible for misinterpretations by newspapers. (One newspaper in particular had reported on the list, liberally using words like fraud, swindler, cheat, liar, conman as obvious synonyms for quack.)

    The best way for legal action against quacks seems to stress the fact that they mislead the public, misrepresent their treatment, are not able to provide a proof for their claims. In this way the intent to deceive doesn’t have to be proved.

    If you get into a bus, you assume the driver is sober and has a driving licence. If he has no license he may have the intent to bring you safely to wherever you want to go, and even think he is able to do so (same in case he is drunk) but his intentions and beliefs about himself don’t matter, and neither do the feelings of the passengers that he such a nice guy: he is not allowed to do so. The public prosecutor (if he is caught) doesn’t even have to show by how much this would-be driver increased the risk of death for his passengers. The driver cannot show his driving licence – that’s all the proof needed.

    Similarly anybody in the health business: if you cannot show a scientific basis of your cure or treatment, then you should stop – no questions asked whether you believe in what you do, no calculations of the risk involved.

    I guess it will be some time before healers are treated the same as bus drivers.

  10. Jann Bellamy says:

    Still working on technical issues. In the meantime:

    @ Epinephrine: We have similar laws in the U.S. They have been used against supplement and medical device companies with some success. They could be used against other CAM products and practitioners and I imagine we will see more individual suits and class actions in the future as the attorneys catch on — just as they did (eventually) in the tobacco cases. There is also a government enforcement mechanism in many of these statutes but resources are so stretched (especially now) that it is difficult to chase down everyone. Of course, with Congress and the state legislatures working against everyone by legalizing the sale of these services and products, it’s an uphill climb. I think that is where we have the possibility of real reform — stop putting nonsense in the statutes, or, where it is already in, take it out. It is absolutely insane that it is legal to tell patients they need to be treated for “subluxations” or to sell homeopathy as an effective remedy.

  11. Mojo says:

    …there is no equivalent of “alternative medicine” in the law.

    Have you never heard of the “sovereign citizen” or “Freeman On The Land” movements?

  12. Ben Kavoussi says:

    Acupuncture education is definitely fraud!

    Acupuncture schools prepare students to become non-physician acupuncturists, also called “licensed acupuncturists” (LAc).

    Most schools have an unaccredited Master degree program in “Oriental medicine.” In most states, licensed graduates can practice acupuncture, herbalism (the nonscientific and non-pharmacological prescription of herbs), and Oriental massage.

    A list of these schools is at the following website:

    http://www.acupunctureschools.com

    But in reality there are almost no jobs available to LAcs, because they have very little training in scientific medicine — what the acupuncture profession refers to as “western” medicine.

    The existing acupuncture jobs in community clinics or with mainstream clinical practices are mostly open to physicians who practice acupuncture based on scientific medicine.

    The student loans benefit the schools only.

    The recent hearings on private post-secondary education are focused on the large private for-profit schools — which is appropriate.

    However, many smaller “professional” schools are able to generate enormous profits by relying on tuition underwritten by federal loans. Acupuncture schools are among this shady group of “professional” schools.

    Graduates are left without the possibility of repaying them by using what they have learned in schools. This has forced many to work in fields other than acupuncture to repay their loans. I know one that drives a taxi to make the payments!

    There are many indebted acupuncturists in this situation, but most are choosing to remain quiet about their debt because they are embarrassed, or ashamed, of their educational and professional situation.

    In order to gain employment, graduates have to undertake more debt to attend programs in nursing, physician assistant, or other healthcare professions, so they can provide a sustainable income to support their families. In addition, they have to repeat the same basic biomedical science courses because they are not accepted as equivalent to university-level courses.

    This is a real Title IV fraud in the name of CAM. Former and current students should take action and request the reimbursement (or the forgiveness) of their tuition and its interest.

    Stiff regulation should be implemented, requiring full disclosure of employment data and opportunities before or at the time of enrollment, so students are not saddled with unmanageable debt.

    The new regulation should also require CAM schools to fully disclose that their accreditation status is not the same as or equivalent to regionally accredited schools, and their course are often non-transferable to regionally accredited colleges.

  13. WilliamLawrenceUtridge says:

    @Jann

    Looks like you need a close blockquote at the end of “…they implied the existence of superior knowledge as well as a state of facts that did not exist.. Throw a slash between the < and the blockquote and you might fix it.

    I bet a dollar that my own blockquotes turn out wrong. Why oh why can't we have a preview screen for comments?

    @rbnigh

    For example, nutrition based therapies for conditions such as diabetes, therapies of which most graduates of medical school are woefully ignorant.

    The solution is educating medical graduates, not embracing unproven science. If you mean that nutrition can cure diabetes, perhaps in the case of type II. For type I, all the nutrition in the world will not regrow a pancreas. Getting fat people to eat less and exercise more is standard treatment for type II diabetes, getting them to eat a lot of some allegedly magical food is probably unproven.

    For example, medicinal herbs in the Precolumbian Aztec pharmacopia have been found to have the physiological effects attributed to them by traditional healers in 70% of cases. (this was reported in Science a few years ago)

    How is this better than studying the actual molecules, purifying them and providing standardized doses that can be adjusted precisely based on body mass? If the plant has a molecule that is biologically active, it needs to be studied to see if we can make it better, safer, more reliable, with a more predictable effect, and possibly modified to have fewer side effects. And no matter what – the solution is research, not simply assuming everything the Aztecs did was effective. If it’s effective, this should be easy to demonstrate. If it’s not, herbalists and CAM pushers should really, really stop blaming flawed science rather than flawed assumptions.

    Also we need to evaluate ‘healing’ practices around the world, not just be encased in our notions of what is ‘biologically possible’.

    Considering our “notions” are based on hundreds of years of empirical evidence, our “notions” about what is biologically possible is probably a whole lot more accurate than people who thought their livers were ruled by wandering stars (which were actually planets). And need I point out that popularity, irrespective the population, doesn’t mean effectiveness? This goes for all treatments, including contemporary ones. The point is to test, then abandon – not test, then test again, then blame the method, then test some more, then make excuses, then ignore the tests you don’t like and claim science has nothing to offer because it has results you don’t like.

    If we close down the discussion to CAM=fraud at the outset, we eliminate the option of evaluating these scientifically, and thus the opportunity to learn something new and possibly valuable.

    You’re apparently confusing herbalism (possible benefit, based on well-understood principles) with the actual discussions in the text – homeopathy (no way it could ever work), acupuncture (violates most of what we know about biology, consistently fails testing), chiropractic (no evidence it’s good for anything but musculoskeletal problems, dangerous), reiki (see acupuncture, and probably homeopathy). The real problem is we’ve already done lots of testing with these modalities, and they’ve consistently failed but this evidence is not used by practitioners to improve their practice – it is ignored. Scientists have listened, it’s practitioners and proponents have closed down the discussion. The points discussed in the above article are already fraud, the article isn’t a priori excluding all CAM modalities. It’s primarily aimed at the wildly improbable.

  14. cervantes says:

    I do agree that much of what is called CAM is really fraudulent. Just because a lot of people believe something shouldn’t make it okay to sell goods and services under false pretenses. But this bring us to very fraught territory, because Christian faith healing is no more defensible than homeopathy. What would happen if there were prosecutions or civil suits for fraud against Christian preachers? I, personally, would be all for it but it’s never going to happen. If you think about it, it’s really because of the slippery slope leading to religion that the authorities are reluctant to go after snake oil peddlers.

  15. rbnigh says:

    “Science provides, among other things, an impartial framework to examine the safety and efficacy of a putative therapy.”

    I am afraid it is you who hold a naive view of the nature of science. As the discussions on this blog amply demonstrate, “science”, that is, what scientists say and do, is anything but impartial.

    We should really examine the claims of science to Truth. Really, what we can demonstrate by our reliable methods is a tiny part of the phenomenon of health and disease. As one of my professors (Ruy Perez Tamayo) put it, there is a chair missing in medical schools, that should be the most extensive subject, the chair of medical ignorance. What we know with certainty is really very small. It seems arrogant to claim exclusivity of Truth based on scientific evidence. Certainly if the doctors who write here had to base their actions solely on what we ‘know’ scientifically they would have very few tools to work with. Their patients would probably all die.

    Practical healers, whether they are ‘scientifically’ trained Western doctors or shamans of another culture, have to deal with situations on a daily basis about which we are mostly ignorant. Yet we have to act as best we can to relieve suffering and hopefully prolong life. Each has tools they have found to work sometimes and they do the best they can. In this realm of uncertain truth scientific medicine has relatively little to offer vis a vis alternative medicines, which, as one comment points out, are about 70% effective merely due to placebo effects. Really, what is there?, antibiotics and a few other wonder drugs and a very imperfect understanding of our biology. To assume that ‘science-based medicine’ is universally superior to, say shamanism (tens of thousands of years of empirical experience) goes far beyond the scientific evidence and is really a form of religious arrogance.

    William, my point is that CAM is defined at the outset as fraud, so the only examples considered in the ‘actual discussions in the text’ are those that meet the criteria of fraud. I call this ‘stacking the deck’

  16. windriven says:

    Oh, puleeze-

    “I am afraid it is you who hold a naive view of the nature of science. As the discussions on this blog amply demonstrate, “science”, that is, what scientists say and do, is anything but impartial.”

    The scientific method is absolutely impartial. rbnigh, for instance, might have a conjecture that dandelion pollen is an effective treatment for bedsores. rbnigh might then come up with a plan to test this conjecture. Say, a double blinded study with half of the bedsore population treated with dandelion pollen and half with the current standard of care preparation. The conjecture is now a hypothesis. If that study is actually conducted, the hypothesis may be decisively disproved. Or it may be that dandelion pollen shows promise. If the latter, other researchers would attempt to duplicate the results in perhaps larger studies. Ultimately, if dandelion pollen continued to show promise, attempts would be made to isolate the active compound(s) in dandelion pollen. Experiments would be conducted to determine the best dosages. Others would attempt to understand the mechanism by which dandelion pollen works.

    In short form, that is how science gets done. It is not enough to simply make a claim or to suggest that ‘lots of people do it so it must be efficacious.’ That does nothing to advance the frontiers of knowledge.

  17. Harriet Hall says:

    @rbnigh,
    “To assume that ‘science-based medicine’ is universally superior to, say shamanism (tens of thousands of years of empirical experience) goes far beyond the scientific evidence and is really a form of religious arrogance.”

    I’m quite willing to accept that something a shaman does might be superior to what scientific medicine has to offer in specific cases, but I won’t accept it without evidence. To do so would be belief-based arrogance.

  18. Scott says:

    The key point is that there is ONE, and only one, way to confidently determine what does and does not work. And that is science.

    Shamanism and the like are no more than guesses, which are usually wrong.

  19. WilliamLawrenceUtridge says:

    @rbnigh

    Science is a method that emphasizes addressing cognitive biases and empirical data. Claiming science is baised because it is done by people is being really selective and is very close to claiming you can’t trust scientists because of BIG PHARMA which is both damned annoying and a conspiracy theory – not a real argument. To go the other direction and claim thta you can’t trust scientists but you can trust CAM practitioners is not just a double-standard, it’s damned stupid.

    I’m not sure what school you’ve been going to, but “science” never claims it has truth as it is merely a way of testing hypotheses. What we know with absolute certainty is actually zero – what we know with a fair degee of certainty is quite large, and the true value of the method is what we can discover by testing rather than taking things on faith or navel gazing. The whole point of this blog is that when a doctor tells you what they think is true, there’s a much higher chance that it’s right than when a homeopath. Comparing a witch doctor to an MD reveals a considerable amount of credulousness on your part. Tens of thousands of years of shamanism is little more than tens of thousands of years of confirmation bias. There’s a reason why there was a massive die-off of Aboriginal populations when Europeans showed up in Australia and the Americas – it’s because they had a whole bunch of nasty diseases that those shamans had no treatment for.

    Also, CAM is defined at the outset as fraud because it’s treatments that are unproven, improbable, disproven, yet still promoted as if it were proven. Real medicine must test first, then intervene. CAM, according to Bausell’s definition, involves never testing and always promoting. Yes, Bausell’s definition is self-confirming but only because it includes the criteria that an intervention must be tested before being used, and discarded if it fails. CAM is therefore, a litany of unacknowledged failures. If CAM worked, it would be used. CAM is the definition of nonworking treatments that are still used.

  20. cervantes says:

    It’s very common, and very silly, to point out that there are many questions as yet unanswered by science, and then to claim it’s legitimate to fill in the gaps with whatever arbitrary shit you want to make up.

    Scientists are well aware that we don’t know stuff, that’s the whole point of what we do — we don’t spend our time studying what we already know, we did that in school. We spend out time studying what we don’t know. To say there ought to be a chair in medical school for the unknown is utterly ridiculous — the unknown is precisely the business of 100% of the people doing medical research. That’s what every chair in a research institution is for.

    Duhh.

  21. nybgrus says:

    @rbnigh: well, as expected the eloquent denizens of this blog have already taken you to task, leaving me very little in their wake. However, I will echo every comment heaved your way and add that indeed your definitions and ideas about science and medicine are completely off base and rather ignorant.

    Moreso, the only way your “stacking the deck” comment works is be perpetuating the false dichotomy of CAM. All those “CAM” modalities you describe are, in fact, NOT CAM but science based medicine.

    Nutrition is well understood from a scientific basis, especially in its application to diabetes, and is advocated by SBM

    “Aztec apothecary” and other bioactive herbalism is called pharmocognosy and is a branch of pharmaceutical sciences.

    I shant waste my time going on. I would strongly recommend you read up on some of these topics here and educate yourself before continuing to comment. However, I got a shiny silver dollar and an apple fritter to bet you will continue to try and defend your “stack the deck” stance and keep spouting off about the false dichotomy and how we can all learn something from an Amazonian shaman.

  22. Jann Bellamy says:

    @ cervantes:

    At least in the U.S., religion is afforded a certain amount of protection by the First Amendment. However, even with that protection, it doesn’t mean that a religious leader could not be sued for fraud. It would depend on the extent to which what he said is true or false, and his intent. No doubt it’s a murky area.

    @ Mojo: No, I haven’t heard of this.

  23. Scott “The key point is that there is ONE, and only one, way to confidently determine what does and does not work. And that is science.

    Shamanism and the like are no more than guesses, which are usually wrong.”

    Not that I completely disagree, but just a thought.

    When I’m fixing my bike, I seldom need a scientist to tell me if the brakes work or not. When I was learning to punch, I didn’t need a scientist to tell me how to break a board.

    There are a lot of things in life where you receive immediate feedback, where the risks are obvious and the long term risks are limited. So, there alot of times that you can get away without using science.

    Science is a lovely thing to use when you may not receive immediate feedback from an intervention, the feedback you receive from an intervention maybe deceptive or complex and/or the risks (long term or short term) may not be self-evident.

    Interventions such as massage, meditation or certain kinds of exercise may have a simple enough feedback mechanism to evaluate effectiveness without science, depending upon the goal. (I breath more slowly, I feel more relaxed).

    Why am I pointing this out? I don’t know. It was fun to think about.

  24. squirrelelite says:

    Since several of the comment threads on this and other blogs I follow recently have involved considerable discussion of the scientific method, I was especially struck by several segments in Richard Feynman’s first autobiographical book, Surely You’re Joking, Mr. Feynman!, which was published in 1985.

    After discussing his experiences with hallucinations in a sensory deprivation tank and realizing that a discovery he thought he had made about how memories are organized in our brains was just a hallucination, he went into the chapter on Cargo Cult Science.

    During the Middle Ages there were all kinds of crazy ideas, such as that a piece of rhinoceros horn would increase potency. Then a method was discovered for separating the ideas—which was to try one to see if it worked and if it didn’t work, to eliminate it. This method became organized, of course, into science. And it developed very well, so that we are now in the scientific age. It is such a scientific age, in fact, that we have difficulty in understanding how witch doctors could ever have existed, when nothing that they proposed ever really worked—or very little of it did.

    Then he discusses a man practicing reflexology with a girl at one of the hot springs baths at Esalen and the South Sea Island cargo cult(s) and notes:

    But there is one feature I notice that is generally missing in cargo cult science. That is the idea that we all hope you have learned in studying science in school—we never explicitly say what this is, but just hope that you catch on by all the examples of scientific investigation. It is interesting, therefore, to bring it out now and speak of it explicitly. It’s a kind of scientific integrity, a principle of scientific thought that corresponds to a kind of utter honesty—a kind of leaning over backwards. For example, if you’re doing an experiment, you should report everything that you think might make it invalid—not only what you think is right about it: other causes that could possibly explain your results; and things you thought of that you’ve eliminated by some other experiment, and how they worked—to make sure the other fellow can tell they have been eliminated.

    I don’t have the access or time to devote to a lot of reading the CAM literature, but I haven’t seen very much of this “leaning over backwards” in the published CAM literature. And they certainly don’t lead into their discussions by noting that, “Oh, by the way, we’ve spent 100’s of millions of dollars over the last 10 or 15 years studying these things and haven’t been able to conclusively demonstrate that any of them work.”

    Details that could throw doubt on your interpretation must be given, if you know them. You must do the best you can—if you know anything at all wrong, or possibly wrong—to explain it. If you make a theory, for example, and advertise it, or put it out, then you must also put down all the facts that disagree with it, as well as those that agree with it. There is also a more subtle problem. When you have put a lot of ideas together to make an elaborate theory, you want to make sure, when explaining what it fits, that those things it fits are not just the things that gave you the idea for the theory; but that the finished theory makes something else come out right, in addition.

    Instead, we see suggestions that if “real” acupuncture doesn’t work any better than sham acupuncture, then sham acupuncture must work also?!?

    In summary, the idea is to try to give all of the information to help others to judge the value of your contribution; not just the information that leads to judgment in one particular direction or another.

    Individual researchers may certainly be biased, especially in favor of their own ideas, but it is this willingness to submit those ideas to the judgment and testing by others that allows the scientific process to correct for that bias.

    We’ve learned from experience that the truth will out. Other experimenters will repeat your experiment and find out whether you were wrong or right. Nature’s phenomena will agree or they’ll disagree with your theory. And, although you may gain some temporary fame and excitement, you will not gain a good reputation as a scientist if you haven’t tried to be very careful in this kind of work. And it’s this type of integrity, this kind of care not to fool yourself, that is missing to a large extent in much of the research in cargo cult science.

    In this discussion of cargo cult science, Feynman also includes parapsychology experiments and the “scientific” study of educational methods and rehabilitation of criminals.
    Then, he comes to his famous quote.

    The first principle is that you must not fool yourself—and you are the easiest person to fool.

    So you have to be very careful about that. After you’ve not fooled yourself, it’s easy not to fool other scientists. You just have to be honest in a conventional way after that.

    Unfortunately, proponents of complementary and alternative medicine are seldom honest in this conventional way.

  25. The only “stacking the deck” I see in the post is that all the scenarios involve practitioners of CAM that consciously have doubts or know better, or have some degree of conscious intent to deceive. The scenarios seem custom crafted to fit the definition of fraud.

    Take the MD practicing acupuncture and alter the scenario to

    A is aware, from his undergraduate education in the sciences and his medical education and training, that the basic principles of acupuncture are have not yet been scientifically determined to be valid but, having reviewed the literature in acupuncture journals, knows it is effective despite no evidence yet for its method of action.

    Take the ND practicing homeopathy and alter the scenario to

    A, having taken classes in chemistry and physics, knows homeopathy has no plausible method of action in current science, but has clinical and anecdotal evidence of its effectiveness and has naturopathic journal studies confirming its effectiveness, and has determined that science has just not yet discovered how homeopathy works.

    Lets look at and alter the DC scenario a bit as well

    “A responds that “the scientific evidence for the safety and effectiveness of chiropractic care is overwhelming.”” A has made no explicit statement regarding the scientific validity of the chiropractic subluxation, only that there is scientific evidence for its safety and effectiveness. A may be relying on trials and studies published in chiropractic journals that show improvement for many conditions following chiropractic treatment. A may also be relying on those same journals that have studies showing the positive risk/benefit ratio of chiropractic treatment to conclude it is safe. A is unaware of the low quality of the study and trial methodologies or the low threshold for publication in the professional journal.

    Lets alter the Reiki scenario to add
    A believe deeply in the paranormal and the spiritual interconnectedness of all beings. A believes intercessory prayer, which many seemingly reasonable people believe in the effectiveness of, is merely as misunderstanding of Reiki.

    In all these scenarios, the validity (or complete lack thereof) of the CAM practices has not changed, but it seems the cases for fraud either go away or are at least much more difficult to make.

    I can’t say how representative my experience is, but in my experience most practitioners of defined CAM that I have run into seem to fit closer to the scenarios I presented rather than the ones presented in the post. They really 9seem to) believe what they do works and is valid, and they don’t really (seem to) have any doubts.

    In those cases, I would think there is no legal fraud, in spite of medical and scientific incompetence, but I am not a lawyer.

  26. nybgrus says:

    michele: I would actually argue that you are doing science. You are setting up a simple experiment with a discrete binary outcome (in the case of the board breaking) or a subjective experience (in the case of the massage or breathing slowly) as the end point and then empirically testing to find if you achieve the results you assumed you would (the hypothesis). By constraining your hypothesis so that it is not generalizable (this technique for board breaking will work for everyone vs it works well for me) or by making the subjective outcome the hypothesis (I will be more relaxed by breathing slowly) it becomes an easy and accurate hypothesis to scientifically test without realizing that is what you are doing (albeit of narrow scope). When you wish to become more specific or more broad, however, science as a conscious level construct must come into play (is this the BEST method for breaking the board, by HOW MUCH are my brakes worn out and WHEN should I replace them, will breathing slowly make EVERYONE feel more relaxed). The problem that arises with pseudoscience is that people often feel that can take these same intuitive “non-science” methods of understanding simple phenomena and apply them to those more broad or specific hypotheses. And that is when confirmation bias plays a huge role.

    I don’t mean to slam you in any way – I think you make an interesting observation. I just tend to try and think of everything in those terms and elucidate hidden processes and mental shortcuts we all take.

  27. omakii says:

    Fascinating article!

    What effect do B’s doubts, knowledge, or beliefs have on these cases? If, for example, B thought that the Reiki seemed ridiculous, but tried it anyway, would the practitioner be any less liable?

  28. evilrobotxoxo says:

    michele: I want to second nybgrus’s point. Science is not defined as what professional scientists do. Science is basically common sense squared, trying to understand things by using observations to constrain a model of a phenomenon. In a sense, one of the most fundamental activities of the brain is generating implicit models of things and events in the external world and constraining those models with sensory inputs. The “science” that professional scientists do is simply an extended, more rigorous version of this activity in which the model and its underlying assumptions are made explicit.

  29. windriven says:

    @micheleinmichigan

    But Michele, don’t you see that your are in fact behaving scientifically?

    “When I’m fixing my bike, I seldom need a scientist to tell me if the brakes work or not. When I was learning to punch, I didn’t need a scientist to tell me how to break a board. ”

    When you’re fixing your bike with broken brakes you start with a conjecture about why the brakes don’t work. You address the resulting hypothesis by making some repair. Then you test that hypothesis by checking the function of the brakes. If they now work then your hypothesis has been proven. If not, you will investigate further and formulate a new conjecture about why your brakes don’t work.

  30. nybgrus – To clarify, my point was to some extent a Shaman, Choi Kwan Du Master or my personal knowledge of bike repair may be perfectly adequate to get the job done. In fact, in some cases they may be better than someone who has an in depth knowledge of the scientific principles in play. BUT their advice should not be taken outside that limited visible cause and effect realm. For instance, I would not take my Choi Kwan Du instructor advice on a tendon injury.

    “When you wish to become more specific or more broad, however, science as a conscious level construct must come into play (is this the BEST method for breaking the board, by HOW MUCH are my brakes worn out and WHEN should I replace them, will breathing slowly make EVERYONE feel more relaxed). ”

    Since the BEST method to break a board would have to incorporate looking damn cool while doing it, I have my doubts about how well science can answer that question. ;)

    Now, I’m afraid I’m too off topic, particularly for so early in the comments, so I will cease and desist.

  31. marcus welby says:

    Ben Kavoussi: good points all. There are also a group of chiropractors who want to sue the Dept. of Education for allowing DC schools to sell them an education package which was deficient in training them to earn a living and left them with huge debt. Taxpayers have backed these loans to private schools as you point out, and there is a high default rate. Many graduates of the Life Sciences Chiropractic school in Atlanta, I think, have collaborated on their effort to recover from what they say was a fraudulently promoted educational opportunity lacking in value.

  32. Windriven – Okay, I’ll admit it, I’m doing science. I actually edited my post and unintentional changed the meaning slightly.

    What I meant to suggest is that a Shaman who teaches meditation relaxation techniques may know well enough that his techniques “work” since the cause/effect are simple to observe (through a simple scientific method). My concern is when we are dealing with diseases or more complex issues, that trial and error are not adequate tools for the job.

    I’m just trying to delineate in my mind when a science based expert may be needed and when a trade expert may be a good bet.

  33. okay now I’ll leave way for the legal discussion. really.

  34. Jan Willem Nienhuys says:

    I don’t think you get Michele’s point. When one’s bike doesn´t work, it is usually quite clear (1) that a certain part doesn’t work (2) and often also what’s wrong.

    Example: flat tire. You don’t have to form a hypothesis about what’s the matter with your tire. And for repair: there is usually a hole in the inner tube, and the method to find that hole and fix it is also straightforward. Except when the valve has a slow leak and there is no hole.

    Example: your light doesn’t work (I live in a country where it’s often dark, and having working front and tail lights is obligatory, and it also can save your life). You don’t need a scientist to tell you that your tail light isn’t working. However, and there windriven has a point, it is not really easy to figure what’s wrong. The lead(s) can be broken, or their contacts corroded, the contact at the dynamo or in the light with the mass of the bike can be corroded, the bulb of the light can have passed the end of its life, and so on. Then you need to have somewhat of a scientific mind to fix it. For starters, you have to understand that electricity must have closed circuit.

    Example: the chain regularly falls off the sprocket wheel. The fact is obvious enough, but what is wrong is maybe not obvious.

    I don’t know what kind of brakes Michele has. If it is a drum brake it may require a lot of work (or an entire new wheel), but if a brake pad of a rim-brake has fallen off, the science part of such an obvious fact is negligible. As Michele was referring to immediate feedback I think she didn’t mean something complicated.

    But here is an anecdote about immediate feedback. A friend of mine had observed that the light in new car only went off when he locked the door with his car key. This he discovered right away the first time he got out of his new car: the light didn’t go out, but when he locked the doors, they went out immediately.

    After having owned the car for about two years, he mentioned this fact to the garage attendant, who proceeded to explain that the light went off by itself after exactly 15 seconds.

    So even things that seem to be obviously working by immediate feedback can benefit from investigation.

  35. pmoran says:

    I can’t say how representative my experience is, but in my experience most practitioners of defined CAM that I have run into seem to fit closer to the scenarios I presented rather than the ones presented in the post. They really 9seem to) believe what they do works and is valid, and they don’t really (seem to) have any doubts.

    That is my experience, also. Mind you, the true frauds would not usually expose themselves to our scrutiny.

  36. oderb says:

    As a regular reader and occasional commenter here for 2 years I find virtually all of the posts on CAM including this one to be tedious and largely besides the point.

    Why? Because the most important issue IMHO never is discussed. And that is why are most doctors and hospitals ignorant if not scornful of alternatives to conventional standards of care which often lead to equal if not superior care with much less risk of serious side effects, and which do not employ chiropractic, homeopathy, acupuncture reiki or other controversial if not arguably implausible modalities.

    My family and I have been going to a conventionally trained MD for 20 years who has a deep and serious commitment to understanding how to best integrate into his treatment algorithms such modalities as vitamins, herbs, breathing techniques, detox, probiotics (years before they became a hot topic) and many many other approaches that 99% of conventionally trained and socialized doctors neither know or care about. In every case he has done his homework, has read the literature (which may or may not include rigorous RCT’s), discussed these techniques with like minded colleagues and carefully observed the results of his interventions on thousands of patients over 25 years .

    One example. Some years ago we were discussing my somewhat elevated cholesterol and I suggested that I’d like to start taking policosonol which is a supplement with an impressive number of studies (at least back then) showing reductions in lipids equal to statins. He advised against it because he found that the patients who he initially recommended taking it had received no benefit (nor harm). (Years later careful RCT’s showed in fact it had no benefit) Instead he suggested that I take a little known herb that he had used with hundreds of patients with great efficacy and no known side effects. I did and my cholesterol normalized as did other CVD markers that statins were useless against.

    I could point out a dozen other examples of interventions that were little known to conventional doctors but benefited my family and friends. Yet the ‘conventional’ doctors I socialize with either never heard of these interventions (presumably their drug reps for some reason never told them) or even worse – and more commonly – didn’t even want to know about them.

    There is a whole world of effective treatments – with varying degrees of published evidence but all with plausibility – that are systemically screened out of conventional medical education and practice -whether because of ideological or economic reasons or simply laziness.

    I’d love someone at SBM to do a series of posts on this issue, rather than the 50th sneering article about homeopathy.

  37. Harriet Hall says:

    “why are most doctors and hospitals ignorant if not scornful of alternatives to conventional standards of care which often lead to equal if not superior care with much less risk of serious side effects, and which do not employ chiropractic, homeopathy, acupuncture reiki or other controversial if not arguably implausible modalities.”

    Are they ignorant? How would they determine which ones were equal or superior?

  38. squirrelelite says:

    OK, oderb,

    Which treatment in this “whole world of effective treatments” would you like to see a post on?

    What disease or condition is it effective for treating?

    How does it improve the outcome over conventional treatment (or complete non-treatment)?

    Would you help us by linking to one or two studies listed in Pubmed that have shown that effectiveness?

    And, can you think of any other causes that could explain those results?

  39. Which treatment in this “whole world of effective treatments” would you like to see a post on?

    The answer is: the Gonzalez regimen, to which we have devoted a lengthy series.

  40. Artour says:

    The same is true about Science Based Medicine publications: manipulation of evidence in relation to alternative therapies.

    Here is an example related to the Buteyko breathing method. One may try to refute this CAM therapy.

    Dr. Buteyko made 2 key statements:
    1) Sick people suffer from alveolar hypocapnia (lack of CO2 in the lungs) caused by chronic hyperventilation;
    2) If they normalize their breathing (get back to the medical norm for automatic breathing at rest), their symptoms and diseases are going to disappear.

    Science Based Medicine even published an article “Buteyko Breathing Technique – Nothing to Hyperventilate About”
    http://www.sciencebasedmedicine.org/?p=2550

    Did Dr. Joseph Albietz provide any evidence in this article that sick people do not hyperventilate? Zero. But such data exist!

    Did he found any clinical trials where the sick (asthma, heart disease, cancer, diabetes) normalized their breathing? None. (The previous Buteyko clinical trials had little to do with achievement of normal breathing parameters, since they got only about half way to the norm).

    Then we come back to the same question: Do sick people have abnormal breathing?

    Well, over 100 Western medical doctors who wrote more than 40 articles could not be wrong since all of them have found 100% prevalence of hyperventilation in the sick:
    http://www.normalbreathing.com/i-hyperventilation-syndrome.php

    Furthermore, up to 90% of modern “normal subjects” breathe about twice (!!!) the norm:
    http://www.normalbreathing.com/i-hyperventilation.php
    Furthermore, over 90% of ordinary people believe that breathing more provides body cells with more oxygen.

    But the title of the article was “Buteyko Breathing Technique – Nothing to Hyperventilate About”.

    Hence, this is a bright example how “Science Based Medicine” does the same…

  41. pmoran says:

    “There is a whole world of effective treatments – with varying degrees of published evidence but all with plausibility – that are systemically screened out of conventional medical education and practice -whether because of ideological or economic reasons or simply laziness.”

    It’s not that. Most medical claims that are based upon the casual observations of doctors prove to be wrong. That has been proved so many times that doctors are indeed now very wary of such claims. They understandably prefer to await the results of more systematic study.

    Nevertheless, cholesterol levels are objectively testable, so it does not necessarily need an elaborate and expensive clinical trial to demonstrate that an agent has a useful effect on it. If your doctor has “hundreds of patients” who have responded well to something then he has publishable data that a drug or herb firm might be very interested in. He might be able to publish even only a dozen or so cases if they were well documented and this was novel information.

    The data might need to be reproduced under more controlled conditions to ensure that it was not really a change in diet, lifestyle, or other medications that produced the effect. The actual effect on cholesterol pathways could probably also be easily worked out.

    So whose fault is it if doctors haven’t heard of it ?.

  42. WilliamLawrenceUtridge says:

    Translation of oderb’s post:

    I have a good doctor. Once I had a minor elevation in my cholesterol that made me aware of it. My doctor gave me an herb and it got better. Therefore all other doctors are shills for Big Pharma.

    Translation of Artour’s post:

    Sciencebasedmedicine.org didn’t like my favoured form of quackery, therefore it is wrong, a shill for Big Pharma, and all doctors are wrong. Unless they agree with me. In which case they are Brave Maverick Doctors, like Galileo.

    Anecdotes are not data, and generalizing from one thing does not make it true for all things.

  43. carol2000 says:

    The anti-smokers commit flagrant scientific fraud by ignoring more than 50 studies which show that human papillomaviruses cause at least 1/4 of non-small cell lung cancers. Smokers and passive smokers are more likely to have been exposed to this virus for socioeconomic reasons. And the anti-smokers’ studies are all based on lifestyle questionnaires, so they’re cynically DESIGNED to blame tobacco for all those extra lung cancers that are really caused by HPV. And they commit the same type of fraud with every disease they blame on tobacco.

    http://www.smokershistory.com/hpvlungc.htm
    http://www.smokershistory.com/SGHDlies.html

    And, all their so-called “independent” reports were ring-led by the same guy, Jonathan M. Samet, including the Surgeon General Reports, the EPA report, the IARC report, and the ASHRAE report, and he’s now the chairman of the FDA Committee on Tobacco. He and his politically privileged clique exclude all the REAL scientists from their echo chamber. That’s how they make their reports “unanimous!”

    http://www.smokershistory.com/SGlies.html

    For the government to commit fraud to deprive us of our liberties is automatically a violation of our Constitutional rights to the equal protection of the laws, just as much as if it purposely threw innocent people in prison. And for the government to spread lies about phony smoking dangers is terrorism, no different from calling in phony bomb threats.

  44. Davdoodles says:

    In my opinion, it is, mostly, fraud (that is, most practitioners are not merely mistaken, but are fully aware that their claims are false).

    Put it this way: If they believe their claims, surely they would jump at the chance to prove them. But consider the lengths they go to avoid the scrutiny of proper scientific testing.

    Even if they weren’t sure, they’d still give it a go. But they rarely if ever do. They construct obviously inadequate tests, or simply declare that science is incapable of testing their nostrums. Any excuse will do, but somehow John Edwards never takes Randi’s million dollar challenge.

    The only reasonable conclusion is that they already know what the science will show.
    .

  45. Davdoodles says:

    Edit: By “practitioners” above I meant “proponents”, ie those who peddle their nonsense to both future CAM practitioners and their ‘patients’.

    I’m quite willing to accept that your average chiropractic practitioner is sufficiently dull-ignorant of science to not have a clue one way or another whether his/her quackery makes a jot of sense…
    .

  46. windriven says:

    @Artour

    You cite normalbreathing.com as meaningful? Are you serious?

  47. pmoran says:

    Davdoodles:“In my opinion, it is, mostly, fraud (that is, most practitioners are not merely mistaken, but are fully aware that their claims are false).

    Put it this way: If they believe their claims, surely they would jump at the chance to prove them. But consider the lengths they go to avoid the scrutiny of proper scientific testing.

    That’s not quite true. Many have eagerly cooperated with having their methods tested. They are deeply puzzled whenever the results are negative (relative to placebo) and invariably try to find reasons why it didn’t work in the tests. That points to belief.

    The true villain here is powerful illusions that pervade therapeutic interactions and CAM practitioners may be only marginally less prone to their seductiveness than respected mainstream doctors are when exposed to the same phenomena.

    Review Steve Novella ‘s recent post on venous interventions for MS (a condition that can fluctuate dramatically spontaneously).

    It took a blinded RCT to show that endoscopic debridement under GA was no better than sham surgery for the usual case of knee osteoarthritis despite wide use by orthopedic surgeons.

    These add to a very long list of major and potentially dangerous interventions that different groups of mainstream doctors have been convinced are dramatically effective in modern times– internal mammary ligation for coronary insufficiency, glomectomy for asthma, gastric freezing for peptic ulcer.

  48. pmoran says:

    Sorry — that should be “marginally more prone”, of course.

  49. rbnigh says:

    William wrote:
    “Science is a method that emphasizes addressing cognitive biases and empirical data. Claiming science is baised because it is done by people is being really selective and is very close to claiming you can’t trust scientists because of BIG PHARMA which is both damned annoying and a conspiracy theory – not a real argument. To go the other direction and claim thta you can’t trust scientists but you can trust CAM practitioners is not just a double-standard, it’s damned stupid.”

    Actually I didn’t say either of those things (Although the undue influence of the pharmaceutical industry on contemporary medical education, research and practice is hardly deniable)

    Scientists are biased because they accept a series of postulates about how the universe works that can’t be proved and then take them as Truth. Then they say things like

    “The key point is that there is ONE, and only one, way to confidently determine what does and does not work. And that is science.” So scientists don;t make truth claims, eh? Well maybe Scott isn’t a scientist.

    There is not one science, but many scientific approaches and levels of evidence. A little humility is in order, I think.

    nybgrus:
    “I would strongly recommend you read up on some of these topics here and educate yourself before continuing to comment. However, I got a shiny silver dollar and an apple fritter to bet you will continue to try and defend your “stack the deck” stance and keep spouting off about the false dichotomy and how we can all learn something from an Amazonian shaman.”

    Thank you for your advice nybrgrus. In fact I have been studying science and science history for over 40 years. In fact Amazonian shamans do have something to contribute.

  50. norrisL says:

    Is CAM fraud?

    Simple answer; YES

  51. nybgrus says:

    Oh my. Where to begin. I do not have the time for my usual extremely long posts so I will try and be concise.

    WillLarryUt: spot on. I even skimmed over the hypocapnia article just to be sure. I also find it funny that people come here, spout anecdote, and then whine when we collectively call it piffle.

    RBnigh: Where is my apple fritter and shiny silver dollar? If you make a statement such as:

    “There is not one science, but many scientific approaches and levels of evidence. A little humility is in order, I think.”

    Then you clearly haven’t the foggiest. I’m not saying you haven’t studied “science history” (whatever the heck THAT may be) for 40 years. Heck. I’d believe you if you said you studied it for 60. But you clearly learned nothing from your studies. That’s more the point. I can give an orangutan a book on pharmacology and watch it play with it every day for a decade. I still wont ask its advice on pharmacotherapy.

    “Scientists are biased because they accept a series of postulates about how the universe works that can’t be proved and then take them as Truth.”

    Yet another bright shiny example of how you do not even remotely understand what science is or how it works. The past couple of days have been pretty light in terms of workload and obligations for me, so I was able to be very heavily involved in a separate conversation with pmoran* but sadly I cannot become so engrossed right now. Suffice it to say you have no clue, and I will let others here pick up the rest.

    You can keep the dollar. But I want my apple fritter.

    *while I stand by what I said in my other posts, I will say here that I do in fact respect the debate/argument that we had. I would never have engaged you for so long or so passionately had you been of rbnigh’s ilk.

  52. Jan Willem Nienhuys says:

    Simple answer; YES

    Slightly less simple answer:

    Deceive the world, start with yourself.

    Objectively it is easy to say that the CAMers are misleading the public, but by and large they started deceiving themselves first, for example by relying on their own experiences, filtered through very rosy glasses and selective memory and by encouragement from admirers, and not in the last place because they get paying customers. Or they are just repeating faithfully what their teachers said in naturopathic school. Or what they read on a website somewhere.

    But ‘fraud’ in the common view means intentional deception. Througout criminal law, any kind of malicious intent always makes the offence bigger. Without ‘mens rea’ there is no crime, only possibly a reason for civil action.

    Even when it seems impossible that someone really believes some silly idea, the truth is that many people believe extremely silly ideas (young earth creationism comes to mind). It is really not so difficult to believe six impossible things before breakfast, especially when you have paying patients who think you are a wonderful doctor, or when you listen every Sunday to a minister who preaches precisely what you think.

    That is why CAM usually is not fraud, at least technically.

  53. pmoran says:

    There is not one science, but many scientific approaches and levels of evidence. A little humility is in order, I think.

    I can agree that we in mainstream medical science have a bit, even a fair bit to be humble about, but one test of such a contention as yours is an example of how it has at least once worked out in practice.

    Do you have one?

  54. WilliamLawrenceUtridge says:

    Ah, there are two ways to read “Other legitimate CAM practices would be those based on traditional medical practices that don’t conform the pharmaceutically-based medical practice dominant in US medicine” and I chose the one most CAM practitioners choose, rampant paranoia. My error and my apologies.

    Scientists are biased because they accept a series of postulates about how the universe works that can’t be proved and then take them as Truth. Then they say things like

    Of course, those “series of postulates” are in reality based on empirical evidence that has been both replicated and extended over the course of thousands of experiments. Rather than, say, making shit up without knowing what an atom, cell, virus or star is like essentially everything before science came into existence. Making your argument nonsense. No, those postulates can in fact be proven, or at least demonstrated, manipulated and their effects played with to such a degree we can be certain we understand at least a fair amount of them. In fact, they’ll even be rejected and replaced if it can be convincingly demonstrated that they do not in fact correctly explain some facet of the world. The fact that we can’t know everything isn’t a reason to believe science is a failure and certainly isn’t a reason to look for other ways of knowing. Perhaps you could explain to us what “other ways of knowing” exist, so we can mock them. Other ways of knowing may exist, but they produce correct ideas only by accident and are reluctant to either test or drop them. None are as successful at saving lives, building bridges, making stuff and getting people to the moon.

    So scientists don;t make truth claims, eh? Well maybe Scott isn’t a scientist.

    Maybe not, and it doesn’t matter if he is. Science isn’t one person, it’s a process, a method, a way of knowing. It’s ultimately little more than very simple counting and a whole lot of elaboration. Science requires some humility only in the sense that it is acknowledged that all results are preliminary and open to change, but people should be proud of the scientific process as the best thing to happen to people in the history of the world.

    Thank you for your advice nybrgrus. In fact I have been studying science and science history for over 40 years. In fact Amazonian shamans do have something to contribute.

    Enlighten us. I can’t think of a single thing Amazonian shamans can add to the world that can’t be better understood by science. If you claim it’s medicine, then they have little more to show us than some plants, which we will use science to test for effectiveness and improve upon, and will do more in a decade with those plants than those shamans did for centuries. Once historical practices are known, science can do it’s usual amazing job of turning it into a public good that is far more effective, and far more accurately understood, than some shamanic practices. For someone who has spent 4 decades studying science, your assessment is surprisingly ignorant.

  55. Jann Bellamy says:

    @rbnigh:

    “Yet the post is an example of the kind of ‘stacking the deck’, framing the discussion that assumes the points before the discussion is opened, that one often finds on this blog.”

    See my response to Karl Withakay, below.

    @ Karl Withakay:

    “The only ‘stacking the deck’ I see in the post is that all the scenarios involve practitioners of CAM that consciously have doubts or know better, or have some degree of conscious intent to deceive. The scenarios seem custom crafted to fit the definition of fraud.”

    Exactly. These scenarios are called hypotheticals, and they are used to illustrate the various ways that CAM can be fraud. That’s why they are there. We use them all the time in law school to teach how one set of facts produces one result, but change the facts and you get another result, as you have demonstrated in your comment. I never say that all interactions with CAM practitioners are legally fraud — they are misrepresentations but to be fraudulent they must satisfy one of the the three elements necessary to prove fraudulent intent. Read the “Conclusion” again.

    @ omakii

    “What effect do B’s doubts, knowledge, or beliefs have on these cases? If, for example, B thought that the Reiki seemed ridiculous, but tried it anyway, would the practitioner be any less liable?”

    B would have to show he justifiably relied on A’s statements — in your scenario he couldn’t prove that and therefore it is unlikely he could recover in a fraud action. It’s a point I don’t really discuss in the post but if you look at the elements for a cause of action for fraud discussed under “Fraudulent Misrepresentation” it is there as #4.

    To the several comments raising the issue of intent to deceive and practitioners’ belief in what they do:

    It was my intent in this post to show that it is not necessary to prove a conscious intent to deceive to prevail in a cause of action for intentional misrepresentation. I feel I may not have gotten the point across adequately: reckless disregard for the truth and not having the confidence in the truth of one’s statement that one implies are also sufficient to establish intent. In addition, as I hope I illustrated, CAM practitioners’ belief in what they do can only go so far in protecting them — they can’t totally ignore reality. This is especially true of practitioners who claim they are science-based, like naturopaths and chiropractors.

  56. Although I do not disagree with the conclusion that Jann Bellamy comes to in his article, I’m afraid that the intro triggers one of my major pet peeves. Here is a different definition of CAM on the NIH.gov

    “NCCAM defines CAM as a group of diverse medical and health care systems, practices, and products that are not generally considered part of conventional medicineMedicine as practiced by holders of M.D. (medical doctor) or D.O. (doctor of osteopathy) degrees and by their allied health professionals such as physical therapists, psychologists, and registered nurses.. Conventional medicine (also called Western or allopathic medicine) is medicine as practiced by holders of M.D. (medical doctor) and D.O. (doctor of osteopathy) degrees and by allied health professionals, such as physical therapists, psychologists, and registered nurses. The boundaries between CAM and conventional medicine are not absolute, and specific CAM practices may, over time, become widely accepted.”

    http://nccam.nih.gov/health/whatiscam/

    By that definition, is CAM inherently a misrepresentation? No, I don’t think so. But, the definition that Jann Bellamy uses in the intro appears to be chosen in order to suggest that CAM is inherently a misrepresentation. But, to give credit where it is due, I do think that this mistake was somewhat corrected when JB concludes that…

    “Whether it is fraudulent misrepresentation depends on whether one of the three elements required for establishing fraudulent intent can be proved: knowing misrepresentation, reckless misrepresentation, or stating (or implying) a basis for the misrepresentation that one does not actually have.”

    Of course those criteria could apply to a particular CAM practitioner as it did apply to the group of conventional doctors in the Detroit area that were recently convicted of medicare fraud. And that is a good thing. If that wasn’t the cases, we’d be back to these legal arguments…

    Definition – Witches are evil. Gertrude is a Witch. Therefore Gertrude is evil.

    For fun pretend to be a senator and replace witch with Muslim or communist.

  57. rbnigh says:

    I see,it would seem that the technique here is to bully anyone who presents a dissenting view from SBM dogma by insulting them with words like piffle, stupid and ilk etc. This of course avoids having to present any rational arguments to support your case.

    I am sorry you don’t know what history of science is or you would understand how much you risk making a fool of yourself by presenting today’s understanding as ultimate truth.

  58. rbnigh – there is no technique here. There are diverse individuals with different communication techniques. You have only heard from a few, reading a variety of topics over the course of many days may give you another opinion.

    But I have to admit, I believe one should work the word “piffle” into a sentence whenever possible. You just can’t be sad when you are saying “piffle”.

  59. Jann Bellamy,

    “As criticism of CAM for scientific implausibility grows and study after study fails to support claims of effectiveness, we may reach a point where it becomes impossible for the CAM practitioner to avoid knowing that CAM is based on misrepresentations, making it much harder to defeat claims of fraudulent misrepresentation. ”

    I guess my point is that I have my doubts whether such a day will come any time soon. The scenarios presented are nice hypotheticals, but they aren’t particularly useful today. Our knowledge of physics and chemistry is already at that point for homeopathy. It’s absolutely ludicrous to think a 100C homeopathic remedy is anything but water. There’s not enough particles in the universe to create a solution of the expected concentration of a 100C homeopathic remedy, and yet, sincere beliefs in homeopathy persist.

    It’s hard to prove that my invisible, phase shifted, purple dragon doesn’t exist.

    Powerful, sincere, irrational beliefs persist in spite of overwhelming evidence to the contrary. We still have young Earth creationists around, and the evidence against that is extremely overwhelming. As long belief in the power of intercessory prayer is accepted and not considered irrational, I don’t see how Reike can be significantly differentiated.

    Is it fraud to offer to pray for someone in exchange for money as long as you are not guaranteeing results? Will it ever be fraud to practice Reiki for someone long as you are not guaranteeing results, and you truly believe it can work?

  60. A couple of thoughts occurred to more in the spirit of the post.

    What is the legal responsibility of a vendor if they know they are selling an ineffective product?

    If hypothetically, Walgreen’s sells a homeopathic product they know can not be effective, do they have any legal responsibility/liability at all or are they just some kind of immune middle man?

    Presumably, if it can be shown that the manufacturer of the homeopathic remedy knows there product is only water or water on a sugar pill, they would be potentially guilty of fraud, correct?

  61. “there product” …dang typos!

  62. WilliamLawrenceUtridge says:

    I see,it would seem that the technique here is to bully anyone who presents a dissenting view from SBM dogma by insulting them with words like piffle, stupid and ilk etc. This of course avoids having to present any rational arguments to support your case.

    I am sorry you don’t know what history of science is or you would understand how much you risk making a fool of yourself by presenting today’s understanding as ultimate truth.

    When people essentially present us with lists of talking points from CAM apologists or postmodern nonsense we’ve seen before (and refuted repeatedly), we (or at least I) get testy. When people proclaim science as simply “one way of knowing” rather than the greatest boon conscious thought has ever known, we (and again, I’m really saying “I” here) get testy. You’re not saying anything novel, you’re not providing any references, you’re not backing your points in a convincing way, and you’re making the kind of extreme claims that require extreme proofs. Putting an Amazonian shaman on the same level as a pharmacologist or even psychologist is such an extreme, absurd claim that it really requires something stronger than “trust me, I’ve studied science”. Your understanding of science seems so unselfconsciously postmodern, it’s absurd to anyone who understands the relationship between science and data.

    I actually like reading about the history of science. I’ve read epistemology. I’ve read Orac’s posts on science, and done a lot of reading on the creation-evolution controversy. I consider myself a somewhat informed amateur. Given even that limited base, seeing you claim 40 years of education and then claim that science is about understanding “ultimate truth” makes me question whether you actually have anything close to the education you claim.

    Feel free to have an Amazonian shaman treat your medical conditions by the way. Particularly something like cancer. After all, he knows just as much about curing cancer as science does, right?

  63. Scott says:

    So scientists don;t make truth claims, eh? Well maybe Scott isn’t a scientist.

    I am indeed. Maybe if you think about it a bit, you’ll be able to discern the difference between facts and methodology…

  64. I’m afraid that the intro triggers one of my major pet peeves.

    Michele, I’m not sure what your pet peeve is, but the definition of CAM on NIH.gov is full of misrepresentations. Bausell’s definition, on the other hand, is a pretty accurate one. We’ve discussed language distortions several times on SBM; here are a couple of places to start:

    Misleading Language: the Common Currency of “CAM” Characterizations. Part I

    Why would medical schools associate with quackery? Or, How we did it.

  65. Scott says:

    In particular, the problem with other definitions of CAM is that they ultimately boil down to “whatever the person speaking feels like.” For instance, take this from NCCAM:

    NCCAM defines CAM as a group of diverse medical and health care systems, practices, and products that are not generally considered part of conventional medicine.

    Trouble is, that isn’t the definition that they actually USE. Seeking biologically active and useful compounds in herbs is a long-standing part of conventional medicine. So are a healthy diet and exercise. However, these are often claimed to be part of “CAM” (including by NCCAM). Falsely, according to their own definition.

    I should also note that this definition as written is synonymous with Bausell’s. If it’s scientifically supported it’s part of conventional medicine, therefore CAM is what’s not scientifically supported.

  66. Jann Bellamy says:

    @ Karl Withakay

    “I guess my point is that I have my doubts whether such a day will come any time soon.”

    Even if the practitioner’s beliefs are strongly held, if he knows that the scientific community believes them to be contrary to basic scientific principles and/or the scientific evidence, the plaintiff can claim that the misrepresentations were fraudulent because he made them recklessly or knowing that he does not have the basis for his representation that he states or implies. I imagine that on cross-examination you could get an ardent believer to admit he had his doubts. If he absolutely refuses, that could be used by the jury as evidence he is not credible witness.

    “If hypothetically, Walgreen’s sells a homeopathic product they know can not be effective, do they have any legal responsibility/liability at all or are they just some kind of immune middle man?”

    If the plaintiff can prove knowing misrepresentation and the other elements of fraudulent misrepresentation then, yes, he could meet his burden of proof. The problem is that the seller/defendant will likely raise the defense of privilege based on the legality of selling homeopathic products in the U.S. per federal law. The “legal product” defense didn’t help the tobacco companies, but a seller of homeopathic products may be able to make out a stronger case for privilege as the federal law appears to specifically incorporate their mumbo-jumbo, as I discussed under the subhead “A license to defraud?” The same principles would apply to the manufacturer.

    @michelleinmichigan:

    “the definition that Jann Bellamy uses in the intro appears to be chosen in order to suggest that CAM is inherently a misrepresentation. But, to give credit where it is due, I do think that this mistake was somewhat corrected when JB concludes that…”

    The definition wasn’t chosen to suit the result I wanted to reach. I used it because I think it is the best definition of CAM I’ve seen. As has been discussed on SBM a number of times, NCCAM’s definition is so broad as to be virtually meaningless and includes a number of practices that have both a plausible basis in science and evidence of effectiveness, such as exercise and taking certain vitamin and mineral supplements.

    “Although I do not disagree with the conclusion that Jann Bellamy comes to in his article . . .”

    Actually, I’m a she.

  67. Jann Bellamy says:

    Thanks, Kim, for looking up the references to the prior SBM posts. I was too lazy — it’s Friday afternoon!
    I guess you, Scott and I were all writing pretty much the same response at the same time.

  68. nybgrus says:

    rbnigh: I gave a few slams, since, as William pointed out, you deserved it. I didn’t have time to expound upon WHY you are wrong and WHY you deserved the slams… but I knew one of my compatriots here would. And he did. Quite nicely I might add. If you don’t like people poking holes and mocking your “opinion” I suggest you either refine your “opinion” so as to be correct, or simply stop spouting off where people know better.

    I was going to try and elaborate a bit on the definition issue for michele but it seems Jann did so already. I’ll second that though. Michele, the point here is that you wouldn’t ask a homeopath to give a definition of homeopathy because I doubt (s)he would say “Magic water with special healing ju-ju beams that don’t really do anything.”

  69. Jann Bellamy

    “Even if the practitioner’s beliefs are strongly held, if he knows that the scientific community believes them to be contrary to basic scientific principles and/or the scientific evidence, the plaintiff can claim that the misrepresentations were fraudulent because he made them recklessly or knowing that he does not have the basis for his representation that he states or implies”

    What if the practitioner can point to a plethora of studies, trials, and misc articles in various CAM journals to support their beliefs? Wouldn’t you then have the more difficult burden of proving the practitioner should have known the journals were not of sufficient quality to be trusted over other sources of information? What if they present a plethora of expert witnesses that relay their anecdotal and clinical experience with said CAM’s effectiveness?

    If they’ve seen it work, then they might argue science just hasn’t figured it out yet.

    It seems like a steeper hill to climb to prove fraud on the part of an honest believer.

    Certainly the fact that many forms of CAM currently have some form of government licensing or quasi-endorsement would provide a large barrier to such line of attack.

    Would licensing of the specified form of CAM in a different sate be of any useful defense to practitioner? ex: “34 out of 50 states recognize the validity of and license my client’s form of CAM, even if our great state has not yet caught up to the rest of the nation.”

    I guess the skill of the lawyers involved on each side would have a major impact.

  70. Ben Kavoussi says:

    @ marcus welby

    Thank you very much; I will try to get in touch with the Chiro students or their attorney. I know a few acupuncture students who want to sue also.

  71. Joe says:

    marcus welby on 10 Mar 2011 at 5:37 pm wrote inre students suing their schools. I cannot find the article; but I recall a law suit ca. 10 years ago. Chiro students are often faced with the need to “treat” a certain number of customers in the school’s “clinic” in order to graduate. However, not enough customers present themselves; so, the students have to cajole and bribe young, healthy friends to come to the clinic.

    Some students became annoyed and sued their school for providing an inadequate clinical experience. Although they had all the evidence to support their complaint- they could not produce any evidence that the school had promised an adequate experience. The students lost.

  72. Another area where sincere belief comes in is sexual assault. A while back a Canadian judge ruled that an assailant was not guilty of sexual assault because he truly believed his victim had consented. This caused great and appropriate outrage on the part of the public, and the very first time this case was used as a precedent the judge said it didn’t count if the belief in consent was due to “wilful blindness.”

    Is there no equivalent of wilful blindness in US law? Is sincere belief really a sufficient criterion to be off the hook?

  73. Jann – “The definition wasn’t chosen to suit the result I wanted to reach. I used it because I think it is the best definition of CAM I’ve seen. As has been discussed on SBM a number of times, NCCAM’s definition is so broad as to be virtually meaningless and includes a number of practices that have both a plausible basis in science and evidence of effectiveness, such as exercise and taking certain vitamin and mineral supplements. ”

    and

    Kimball Atwood “Michele, I’m not sure what your pet peeve is, but the definition of CAM on NIH.gov is full of misrepresentations. Bausell’s definition, on the other hand, is a pretty accurate one. We’ve discussed language distortions several times on SBM; here are a couple of places to start:”

    Jann – sorry about the gender error. :( – Also, please forgive me if I am being unclear, sometimes my vocabulary does not quite meet the needs for the concept I am trying to communicate.

    Maybe one or both of you can help me out.

    Like many definitions, the definition of CAM is highly subjective* and to some extent depends upon your bias either for or against CAM.

    Why do you need to define CAM in order to show that a health care professional (of any kind) who practices a “knowing misrepresentation, reckless misrepresentation, or stating (or implying) a basis for the misrepresentation that one does not actually have.” contrary to the scientific evidence may be liable to charges of fraud?

    The thing that bother’s me is not all non-science-based or unethical doctors practice under the title of CAM (Wakefield) and not all professionals that commonly get grouped in with CAM are misrepresenting themselves (my example before, massage therapists). See Brennan McKenzie’s post on other activities that can get grouped in with CAM in some people’s minds.
    http://www.sciencebasedmedicine.org/?p=10459

    This can not be said for other professions that are considered inherently illegal. All prostitutes do take money for sex. All bank robbers do actually steal money from banks, etc.

    Kimball Atwood. Thank you for the links. I will try to check them out when time permits.

    *Thus the need for Merriam Webster.

  74. Jann Bellamy says:

    @ Alison:
    “Is there no equivalent of wilful blindness in US law? Is sincere belief really a sufficient criterion to be off the hook?”

    I think my response to Karl Withakay a few comments up will answer your question.

    @ Michele:

    “Why do you need to define CAM in order to show that a health care professional (of any kind) who practices a “knowing misrepresentation, reckless misrepresentation, or stating (or implying) a basis for the misrepresentation that one does not actually have.” contrary to the scientific evidence may be liable to charges of fraud?”

    You don’t. The reason I did here is to show that if CAM is defined as Bausell does — and, as I said, I think it’s a good definition of CAM — then you automatically have a misrepresentation, but whether it is a fraudulent misrepresentation depends on whether the plaintiff can prove intent. Obviously, if the actions of any practitioner, or anyone else for that matter, fullfill the definition of fraudulent misrepresentation, then that person is subject to liability.

  75. Sastra says:

    “NCCAM defines CAM as a group of diverse medical and health care systems, practices, and products that are not generally considered part of conventional medicine … The boundaries between CAM and conventional medicine are not absolute, and specific CAM practices may, over time, become widely accepted.”

    But wouldn’t this definition pretty much entail that “conventional medicine” can never grow or progress? Any new technique, remedy, product, or even pharmaceutical which isn’t already a “part” of what’s accepted by the mainstream would now seem to fall under the mantle of “Alternative” — even if there’s solid science behind it and it’s not controversial. If this definition is taken at face value, it seems to freeze “conventional medicine” in time — with all advances coming from CAM.

    Maybe that’s the point? It’s a terribly vague definition, I think, if it can reasonably be interpreted this way. What “boundary” are they really talking about here — other than that between what is now accepted by convention, and what is yet to be?

  76. nybgrus says:

    Extremely well said, Sastra. I will be stealing this from time to time, if you don’t mind :-)

  77. pmoran says:

    The boundaries between CAM and conventional medicine are not absolute, and specific CAM practices may, over time, become widely accepted.

    Any clear examples of that? The reverse more often applies, with “alternative” medicine gathering up a lot of our leavings as mainstream medical knowledge advances. Think colonic intoxication, chelation for atherosclerosis, Beauchamp vs Pasteur microbiology, and the Warburg theory of cancer.

    Might the category “experimental medicine” deal with Sastra’s problem? Elements of CAM may try to portray themsleves as such and even believe themsleves to be such but usually without displaying the trappings of genuine scientific inquiry.

  78. JB ‘You don’t. The reason I did here is to show that if CAM is defined as Bausell does — and, as I said, I think it’s a good definition of CAM — then you automatically have a misrepresentation,”

    Thank you. In your opening statement, I thought that you were concretely defining CAM by Bausell definition. I can now see that you are setting up a premise, with your use of the word “IF” in order to discuss further the ramifications of misrepresentation.

  79. Regarding the use of the word “alternative”. It’s funny when folks here suggest that the definition of “alternative medicine” is some how alternative to facts or science. Among the people I socialize with, the word alternative in this context general means alternative to the conventional.

    Alternative energy is not alternative to energy or physics, it is an alternative energy source to the conventional fossil fuels industry.

    Alternative music is not alternative to musical structure, notes or musical instruments. It is alternative to the conventional pop music industry.

    Alternative art is not alternative to the principles of art, it is alternative to the contemporary conventional gallery scene.

    If it is true that the law has no alternatives. That is only because the law is conventions.

    You can only argue that alternative medicine is by definition alternative to facts or science if you can show that conventional medicine is completely driven by science, without concern for profit margins, media misrepresentations, politics, maintaining the status quo.

    And if that were the case, there would be no threat from CAM to conventional medicine, because one keeps hearing that that threat comes in the form of media misrepresentations, politics, etc.

    It is a bit of a mind f*&%#.

    So much more logical, in my mind, to point out that the alternatives presented in the current crop of alternative medicine therapies are actually substandard, ineffective and pseudoscience. That there is a better way.

    Folks don’t fight the alternative, BE the better alternative.

    Isn’t science based medicine in some ways an alternative to conventional medicine? Isn’t that the idea, to look at the medicine in a different way than conventional medicine has?

  80. WilliamLawrenceUtridge says:

    I realize the topic is dead and this post tangential, but still – it mentions Brazilian tribesmen so it’s totally relevant:

    http://www.cracked.com/article_18821_5-examples-americans-thinking-foreign-people-are-magic.html

  81. scienceofmassage says:

    This blog is so interesting. What surprises me about it is just that doctors’ routine snake oil remedies don’t make the cut, such as, “this cortisone shot may kill important tissue; thankfully, it has a 30% likelihood of making you feel temporarily better.” Or, “I know that MRIs routinely show degenerative disc disease and arthritis on pain-free people, however, because I know nothing about muscle tension, I’m here to tell you that that low back pain you have is arthritis. Try Alleve. Better yet, Celebrex! And no worries, you can take it forever.” Or, “I’m sorry you have neck pain, but there’s no evidence of a tear anyone can operate on. Vicodan and rest. What’s that, you’ve heard good things about physical therapy? Oh alright, I’ll write a script for that too.” (Patient goes to physical therapist. Takes 20 sessions for something the right massage might –in some instances–take 2 or 3.)

    In other words, I’m not sure why Western medicine is getting such “golden boy” treatment. Practitioners in every profession can be direly useless, and the science behind even many western medicine claims is dubious. Science can run circles around itself with Vitamin D and C and calcium and etc, only to come up with a null set. I appreciate that your argument is that Western medicine has much more to recommend it, but that doesn’t mean it’s off the hook from claims of snake oil and pseudoscience. When there are prominent studies (I’m about to make a few sweeping generalizations, but I hope you’ll hear my point), each study must be combed with a fine-tooth comb, and when it is, it often reveals flaws that only necessitate a new study. Meanwhile, the poor patient lies dying, chronically ill, or in debilitating pain. Most of all, what I don’t think this blog takes into account is how desperate clients often are by the time they seek out ‘alternative’ forms of care. They have often tried several different opinions and followed every doctor’s advice and they are reeling in pain. Western medicine knows nil about a great deal. I am surprised many times each month to hear of unusual conditions doctors didn’t know how to treat or have only a limited protocol for. Some of these desperate patients then try every possible CAM, and when they finally find something that seems to work, the only logical thing to do is to believe. I know acupuncturists who resolved problems no one else did, as well as massage therapists (whom I realize you don’t list), chiropractors, and naturopaths (not to be confused with homeopaths, whose work I’ve no experience with).

    Finally, every person is different; we each respond differently to different foods, medicines, and treatment protocols. Many people have had experiences in which a drug their doctor recommended just did not work for them, or had a side effect not identified in the literature. And many pharmaceuticals simply have not endured extensive testing over many years. It’s scary to say this and sometimes to even think it, but there are times when it is up to us, with help from science but also by listening closely to our own bodies, to identify what foods and medicines and protocols work for us. If we’re thinking clearly, we’ll give sensible weight to our doctors’ opinions and to good literature. But if we stop listening to our own bodies, we can become desensitized to important messages, including warning signs of pain and discomfort that could signal more disease—and including signs of things that seem to help, such as a change in behavior or diet.

    Similarly, when we’re up against a wall and western med has failed us, we can do our research, about the science and about local practitioners, and use it to explore whether other treatments might work for us. Our livelihoods and our families often depend on it. And, in many many cases, we get help.

    windriven, that was so funny when you said “wouldn’t you rather take aspirin than chew on willow bark?” since our bodies evolved in conjunction with willow bark for much longer than with aspirin, I vote for the bark.

  82. WilliamLawrenceUtridge says:

    Scienceofmassage, you might benefit from some reviewing of the scientific method, starting with R. Barker Bausell’s Snake Oil Science which illustrates the reasons why scientific research is better than “listening to our bodies”. While local CAM practitioners are certainly eager to help (and take their clients’ money) it’s only through careful research that we can get the best information on what actually works. Practitioners put their own financial self-interests and rhetorical preconceptions before the good of their patients when they promote untested and unproven therapies in the face of people desperate for a cure.

    Willow bark didn’t evolve with humans. Humans evolved in Africa, spreading out beyond only in the past quarter million years or so. Willow trees evolved mostly in the Northern hemisphere. Salicylic acid was the active ingredient that allowed the bark to be used as a pain medicine until a chemically modified to a form that was less damaging to the human stomach was synthesized. In other words, the compound you say “our bodies evolved in conjunction with” is actually worse for us than the version developed and synthesized for modern use. It’s also a plant hormone, it’s only through coincidence that it’s in any way chemically active and not toxic to us. Many plants are actively and deliberately toxic to prevent being eaten by any animal including humans. Nature is indifferent to our survival, it certainly isn’t trying to help us out. About the only exception is the existence of fruits, which are nutritionally enticing so the seeds of the plant will be spread. Thus, again, those plants aren’t trying to help us out, they are trying to maximize the expression of their genes.

    Reality is complicated and unfair. CAM practitioners claiming nature loves us certainly makes people feel better, despite being patently untrue.

  83. Harriet Hall says:

    I think it’s really hilarious when someone criticizes scientific medicine because it isn’t perfect and thinks that constitutes a reason to turn to something far less perfect.

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