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Physicians and “CAM”

In the last 20 or so years, the popularity of so-called “complementary and alternative medicine” began to lure physicians (M.D.s and D.O.s) into employing CAM treatments, or what is now rebranded as “integrative medicine.” Of course, CAM use by a physician necessarily requires some deviation from the “conventional” standard of care. Because deviation from the standard of care can be grounds for discipline by the state medical board, state legislatures and medical boards in the United States have had to grapple with just how much medical practice acts and regulations should accommodate CAM use by physicians.

As it turns out, less than you might think.

Disclaimer!

Allow me to jump in early on with some qualifiers. This is not a law review article and I did not exhaustively research all 50 states statutes and regulations. Nor am I saying that if you are a physician and have practiced or recommended CAM you violated your state’s medical practice act or regulations. And, of course, no one practicing medicine (actually, no one period) should rely on a blog post for legal advice.  If you want to know the appropriate parameters for practicing CAM, or integrative medicine, or whatever you might wish to call diagnostic methods and treatments that have no plausible basis in science, call your lawyer and your state medical board.

Limitations on CAM use

That said, I did find several states with specific laws or regulations governing CAM practice by licensed physicians. I was pleasantly surprised to learn there are, in my opinion, some significant restrictions on use of CAM. Usually these laws say something to the effect that a physician cannot be disciplined by the medical board for use of “alternative,” “complementary,” “integrative” or “nonconventional” (the terminology varies) diagnostic methods and/or treatments if certain conditions are met. The most common limitation on CAM use, one which might not immediately strike the eye of the casual reader, is found in this New York statute (NY C.L.S. Educ. Sec. 6527), which provides this exception to conduct prohibited by the medical practice act:

The physician’s use of whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition.

Did you notice that the statute requires non-conventional treatment to be effective?

In fact, other states have similar restrictions on CAM use by physicians:

North Carolina (N.C. Gen. Stat. Sec. 90-14):

Medical Board cannot discipline a licensee solely because he used a therapy that is “experimental, nontraditional, or that departs from acceptable and prevailing medical practices unless, by competent evidence Board can establish that the treatment has a safety risk greater than the prevailing treatment or that the treatment is generally not effective.”

Oregon (O.R.S. Sec. 677.190):

Use of an “alternative medical treatment” does not constitute unprofessional conduct if “the physician . . . based on the physician’s professional experience has an objective basis to believe [it] has a reasonable probability for effectiveness in its intended use . . . and poses no greater risk . . . than the generally recognized or standard treatment.”

California (Cal. Bus. & Prof. Code Sec. 2234.1):

Physician not subject to discipline if use of “alternative or complementary medicine” provides “a reasonable potential for therapeutic gain in a patient’s medical condition that is not outweighed by the risk . . .”

Colorado (C.R.S. Sec. 12-36-117):

Physician not subject to discipline if use of “alternative medicine” provides “a reasonable potential for therapeutic gain in a patient’s medical condition that is not outweighed by the risk . . . ”

Ohio (O.R.C. Ann. Sec. 4731.227)

Physicians may use alternative treatments if it is “reasonable when the benefits and risks of the alternative medical treatment and the conventional medical care are compared.”

In other states, similar provisions are contained in the medical board’s regulations:

Louisiana (28 L.R. 1589):

Integrative or complementary medicine can be used “provided there exists a reasonable probability for diagnostic or therapeutic effectiveness in its intended use.”

Texas (22 T.A.C. Sec. 200.3):

The Texas regulation is somewhat confusing. On the one had it says that a physician cannot be disciplined for use of complementary or alternative medicine, “unless it can be demonstrated that such method has a safety risk for the patient that is unreasonably greater than the conventional treatment . . .” Yet, in another section, it states that a treatment must “be based upon a reasonable expectation that it will result in a favorable patient outcome, including preventive practices” and the treatment must offer a greater benefit than can be expected with no treatment.

If we look at the true CAM treatments typically employed or recommended by physicians, such as acupuncture, reiki, and therapeutic touch, I am not aware of a single one that is “effective” or provides “a reasonable potential for therapeutic gain” or is more beneficial than a conventional medical treatment. (I say “true” to distinguish therapies incorrectly rebranded as CAM, such as exercise and nutrition.) One wonders, then, how physicians using CAM in these states can avoid potential trouble with the state medical board.

Unreasonable risk

Other states have a lower standard for CAM use.

Indiana (Burns Ind. Code Ann. Sec. 25-22.5-1-2.1)

“[N]o reasonable basis to conclude that [the treatment] poses an unreasonable and significant risk of danger . . . “

Georgia (O.C.G.A. Sec. 43-34-38):

Uses the same standard as Indiana, but only for “any illness or disease which is potentially life threatening or chronically disabling.”

Alaska (Alaska Stat. Sec. 08.64.326):

Board cannot “base finding of professional incompetence solely on the basis that a licensee’s practice is unconventional or experimental in the absence of demonstrable physical harm to the patient.” This is true even though other reasons for determining professional incompetence (e.g.,violation of Board’s code of ethics or false advertising) do not require “demonstrable physical harm.”

However, the requirement that an alternative treatment pose an “unreasonable risk” before the imposition of discipline may not be the safe harbor it at first appears. In one case, a Washington physician used a galvanic skin response device to detect and treat allergies. The medical board disciplined him even though state law provided that “the use of nontraditional treatment by itself” is not unprofessional conduct as long as it does not “create an unreasonable risk that a patient might be harmed.” The Washington Supreme Court held that leading patients to believe that the device could diagnose and treat allergies, when in fact it could not, placed patients at a risk of harm. Thus, the court essentially grafted an effectiveness requirement onto the statute by finding that lack of effectiveness itself creates risk.

Patient protection

As noted, Louisiana and Texas require a reasonable probability of effectiveness. Even if a treatment could squeak by that one, these states have a fairly elaborate regulatory scheme for a physician’s use of CAM.

In Louisiana, the physician must have a treatment plan “by which progress or success can be evaluated.” (One wonders how the “success” of, say, reiki could be “evaluated.”) The patient must be seen by the physician at intervals to assess the “efficacy” of the treatment. Lack of progress or worsening of symptoms “shall indicate the need to revise the treatment plan.” In addition the patient must have an actual medical diagnosis, which would presumably exclude something like imbalanced qi. The physician must tell the patient a treatment is unconventional or unproven and its benefits and risks.

Texas’s regulations are even more stringent. In addition to requirements similar to Louisiana’s, the Texas physician must give the patient

a description of the underlying therapeutic basis or mechanism of action of the proposed treatment purporting to have a reasonable potential for therapeutic gain that is written in a manner understandable to the patient.

I’d like to see the “underlying therapeutic basis or mechanism of action” for homeopathy or acupuncture written out in an “understandable” way.

And:

All physicians must be able to demonstrate the medical, scientific or other theoretical principles connected with any healthcare method offered and provided to patients.

We have to presume that demonstration of CAM methods would necessarily fall under the “other theoretical principles” category.

As unfortunate as it is that Texas, and other states, allow physicians to use CAM, don’t we all wish that these same regulations would cover all CAM providers? Even if the regulation of nonsense results in nonsense, it would be nice to impose some actual patient protection on the process. (This as opposed to faux patient protection, like education and training in CAM.)

Federation of State Medical Boards

Louisiana and Texas apparently based their CAM regulations on the Federal of State Medical Boards (FSMB) 2002 “Model Guidelines for the Use of Complementary and Alternative Therapies in Medical Practice,” which are to be used by state medical boards in formulating policy. (Other state medical boards may have done the same.) The Model Guidelines are interesting in that they reflect the sort of uninformed enthusiasm for CAM’s potential that I think has been tamped down somewhat by 10 years of unproductive research into CAM treatments. The Introduction speaks of “legitimate medical uses of CAM” and the Guidelines being “consistent with . . . [the] accepted standard of care.” The Guidelines themselves speak of the appropriateness of using CAM as based in part on the question of whether it has “adequate scientific evidence of efficacy.” Based on what we know 10 years later, no CAM treatment to date can meet these standards.

In April of this year the FSMB House of Delegates adopted a new “Essentials of a State Medical and Osteopathic Practice Act.” These documents (this is the 13th) are designed to “serve as a guide to those states that may adopt new medical practice acts or may amend existing laws.” Notably, while the Model Guidelines on CAM are still recommended (or, at least, they haven’t been taken down from the FSMB’s website), the model practice act does not contain any specific reference to CAM, nor does it contain any exception for CAM use to the list of conduct requiring “disciplinary or remedial action.” The Essentials do provide, however, the following grounds for discipline:

making a false or misleading statement regarding his or her skill or the efficacy or value of the medicine, treatment or remedy prescribed by him or her or at his or her direction in the treatment of any disease or other condition of the body or mind.

It would seem, then, that in any state adopting the model practice act, a physician would have to tell the truth about the efficacy of any CAM treatment he offered or recommended and not do it in a way that misleads the patient into thinking that the treatment is efficacious when in fact it is not. Again, I am not sure what CAM treatment could meet this standard based on the current evidence.

Two odd states

This brings me to my home state, Florida, which takes a unique approach. Although I can’t imagine that the legislature meant what it said when it passed this statute governing “Complementary or alternative health care treatments,”(Fla. Stat. Sec. 456.41) this is what the law actually says:

It is the intent of the legislature that health care practitioners be able to offer complementary and alternative health care treatments with the same requirements, provisions, and liabilities as those associated with the prevailing or conventional treatment methods.

Which sounds to me like under Florida law the CAM treatments must at least have some plausible basis in science and a reasonable expectation that they will actually work.

This is confirmed by the definition of CAM treatments:

any treatment that is designed to provide patients with an effective option to the prevailing or conventional treatment methods associated with the services provided by a health care practitioner.

But that’s not the reason I think the legislature didn’t realize what it was doing. (It happens.) It is perfectly reasonable for a state to require that CAM treatments be effective if they are to be used. Here’s the odd thing, though. Florida’s statute applies to all licensed health care professionals. So, in addition to M.D.s, D.O.s, dentists, nurses, and other science-based professionals, it also covers chiropractors and acupuncturists. Frankly, I don’t see how a subluxation-based chiropractor or an acupuncturist could practice at all.

Maybe they could wiggle out from under these provisions with the phrase “prevailing . . . methods associated with the services provided by a health care practitioner” by claiming it means that if a method is “prevailing” in chiropractic or acupuncture, they can use it. Thus, they could argue that detection of subluxations or rebalancing qi with needle sticks is exempted. On the other hand, the only time this argument would likely come up is when a patient claims the practitioner violated the statute by offering an ineffective CAM treatment. Normally, the defense would be that the treatment is, in fact, effective. But in this case the CAM practitioner would be put in the decidedly uncomfortable position of arguing that because the statute exempts “prevailing” treatments in his field effectiveness is not required.

And speaking of odd, we’ll close with a Massachusetts statute (A.L.M. G.L. ch. 112, Sec. 7) I discovered, which doesn’t really deal with physician CAM use but is too good to pass up. Massachusetts exempts the following from the commonwealth’s medical practice act:

clairvoyants or persons practicing hypnotism, magnetic healing, mind cure, massage, Christian Science or cosmopathic method of healing.

Cosmopathic healing? When I googled “cosmopathic” I was asked “Do you mean ‘sociopathic?’” but I did find this video on YouTube.

When cosmopathic healing becomes a licensed health care profession in the U.S., remember, you heard about it here first.

 

Posted in: Legal, Politics and Regulation, Science and Medicine

Leave a Comment (14) ↓

14 thoughts on “Physicians and “CAM”

  1. daijiyobu says:

    Funny enough, I’d heard the term cosmopath from a naturopath about 12 years ago who still practices in Massachusetts. He seemed to think it was a shield in terms of legal exposure for practicing naturopathy up there without the state having a naturopathy licensure structure.

    Not so funny enough though was that it was while I was in horrid ND school taking, of all things, a course taught by the ND called “oncology.”

    What is something cosmopathic anway?

    A ‘disease of the world’?

    Not sure what then gets treated. The patient? The world?

    -r.c.

  2. lilady says:

    Apparently “cosmopathic healing” is a big deal in Karachi. The doctor in the video operates the Hepatitis Cure Center in Karachi…and surprise, surprise…has his own Facebook page:

    http://www.facebook.com/HepatitisCureCenter

    Scroll on down to see the “cosmopathic healing method”…a mixture of homeopathy and herbs. The good doctor also tests for the presence of hepatitis viruses. Hmmm, I wonder if those “tests” are rather unique and all of the individuals who come in for testing, come up “positive”? That might explain his remarkable cure rate, when compared to traditional anti-viral treatments.

  3. BillyJoe says:

    Daijiyobu,

    Cosmos means order, as in an orderly system.

  4. nybgrus says:

    I was thinking it meant doing someone’s makup, like cosmetology :-D

    Great article as usual Jann. Though I did find one law in particular interesting and self-contradictory:

    based on the physician’s professional experience has an objective basis to believe [it] has a reasonable probability for effectiveness in its intended use

    How can you have an objective basis to believe something when it is based on the physician’s professional experience? By that definition, Jay Gordon would have a legally objective basis to believe that vaccines cause autism.

  5. Janet Camp says:

    I wish I took as much positive feeling from this as you. Seems to me that everything hangs on the interpretation of “effective” and how that is evaluated. All homeopaths think their treatments are “effective”. Anyone who uses CAM (doctor or patient) thinks it is “effective”. Most would accept anecdotes as proof of “effectiveness”.

    Secondly, many of the statutes you cite take a shruggie approach in that as long as there is “no harm”, then well, what’s the harm?

    The only CAM docs being questioned at all are the most egregious cases, such as the one in Washington that you mention or that Dr. Barrett reports on sometimes in his newsletter. These are usually obvious quacks who have done enough actual harm to get the attention of authorities. Of equal concern to me, are the Dr. Oz’s, Dr. Weill’s and the increasing number of MD’s that my CAM “friends” report to me that they are seeing because they completely support these patients’ use of woo. One of these is telling my friend that she doesn’t need a mammogram and that if she does, she can use thermography–the woman is 65 and never had a mammo! They prescribe spit tests, “bio-identical” hormones, probiotics, and recommend acupuncture for almost anything and claim it is “proven” to work. They advertise prolifically in brochures for community education (where many of the alties and chiros offer classes) and in publications representing health food stores and co-op markets.

    I don’t see medical boards doing a thing about any of this, but then I imagine that they can only act upon complaints? It becomes much more difficult to try to get someone to have a mammogram when her MD is telling her the woo will do just fine. How do I challenge that authority? Would the medical board be interested in that?

  6. mousethatroared says:

    “cosmopathic healing” is clearly the feeling I get after finding the perfect lip liner, lipstick, gloss combination…

    or possibly the laughs I used to have with my friends in the break room reading silly advice articles in Cosmo.

  7. Janet Camp says:

    @mouse

    Verrrry Gooood! I needed a laugh, which I definitely consider to be “effective” medicine!

  8. Narad says:

    One might well wonder how cosmopathy came to the attention of the Massachusetts legislature in the first place. I mean, sure, witch burnings may have gotten a bad rap, but c’mon. There’s a brief history here; Luis Alvarez wasn’t really an astrophysicist, but if it has anything to do with pyramids, I suppose it’s close enough. (In fact, the Wikipedia reference to Alvarez Physics Memo 504 is not at all what is claimed, but rather mentions in passing a pyramidal design for a Cerenkov detector. It’s also not written by Alvarez. The correct reference is perhaps #545.)

  9. Jann Bellamy says:

    @ nybgrus: “How can you have an objective basis to believe something when it is based on the physician’s professional experience?”

    The statute is obviously poorly drafted and I think the agency’s prosecutor and the doctor’s defense could argue over what it means.

    @ Janet Camp:

    Each state’s laws are different. In Florida, anyone can report a physician, not just a patient. I imagine its the same way in other states (maybe all?) based on the same theory that you want anyone to report a crime, not just the victim. I would call the medical board in your state and find out. I definately think they’d be interested in the doctor who advises thermography for cancer screening, because of the great potential for harm. (What do you want to bet that this guy owns a thermography machine?) I’m not sure about the other woo. I wholly agree that the medical boards are an insufficient mechanism to attack all of the woo out there. At the least, I would favor a statute that gives the state department of health the authority to make a list of substandard treatments and put it on their website with easily understandable explanations as to why they are substandard. At least the public would be warned about all the evidence against things like thermography, bioidentical hormones, etc. Of course, the hard-core cranks would claim it was a government conspiracy with big pharma and other such nonsense.

  10. NYUDDS says:

    Interesting overview of the grappling. Your presentation is another reminder that the practice of medicine is whatever the legislature says it is by whoever it chooses to license. If eternal vigilance is the price of liberty, then some variation on that theme should be coined to warn that traditional, scientific medical practice will always be under siege. The most effective way to preserve the integrity of professional practice acts in the US is by getting involved in the legislative process, starting at the local level and working through state societies. Don’t forget that a portion of your professional dues goes to pay for a lobbyist(s) who is working on your behalf. Make them work…and if you wish to see what they are paid each year, please sit down first. In Massachusetts, the horse is already out of the barn. Every medical school and teaching hospital has more than a dollop of “integrative medicine” on its website and most have structured courses of study.
    http://fontherapeutics.com/integrative-medicine-centers/

    This sampling from Tufts is characteristic of the “education” one can explore:
    http://www.tufts.edu/med/stu-org/bsim/

  11. nybgrus says:

    INTEGRATIVE MEDICINE is a healing-oriented rather than disease-oriented medicine, combining the many facets of health into the art of healing.

    Hmmm… so I’ve been learning only about diseases…. but not how to treat (or, perhaps synonymously, “heal”) people of said diseases. Glad I’ve got that squared away so that when I take my next board exam (which is focused on the management and treatment of disease) I can tell them to F off with that integrative garbage and get back to allopathic medicine like they’re supposed to.

  12. robeaux says:

    Two things:

    1.) I find it interesting that the Florida statutes mention of Liabilities. If sCAMers are to be held to the same liabilities as actual physicians. It should follow logically that sCAMers need to carry levels of malpractice insurance on par with the actual physicians treating similar conditions. With the lack of evidence for the effectiveness of CAM treatments, the premiums charged by insurance companies should be prohibitively high. One of the major reasons for the spread of woo is that it is so damn profitable. With little or no liability for the harm they cause patients through at best a lack of treatment; inexpensive and readily available credentials, if they are even required create an environment where everybody and their dog can run a successful CAM clinic.

    2.) While the Louisiana law may seem proactive, CAM is rearing its ugly (not so little anymore) head all around the state. One of my OBGYN father’s pet peeves is the rise of natural birthing centers. These wonders of medieval medical science offer a “birthing suite just like a hospitals” with deliveries preformed by lay midwives. How any amount of equipment with nary even a nurse in sight, can ever be described as like a hospital is beyond me. How this isn’t the criminal act of practicing medicine without a license is also beyond me. What I really don’t get is the fact that with trained professionals in a hospital millions of dollars of liability insurance coverage is required; but, there are no regulations or mandates for untrained individual in a fancy medical themed hotel room.

  13. Tigger says:

    How other regulatory bodies deal with CAM is interesting too. The College of Physiotherapists of Ontario will essentially allow physios to do anything to their patients provided they first do a traditional physiotherapeutic assessment, offer a traditional physio treatment plan, then explain why they want to use a non traditional treatment and give the patient the choice.

    Patients have the right to choose a treatment even if the treatment is not effective or may be harmful. By these parameters, a physio could waive a dead chicken over the patient.

    Matrix repatterning is one such modality that is quack based and okay by the CPO.

    I do not believe physios or MDs should have the right to offer quackery.

  14. ithacaartist says:

    I had no idea there was this much restriction, on paper. Something’s not right, here. I have questions.

    If possible to determine, what was the intent of the legislation? (Yeah, yeah, largely do the agenda of those who voted each into office..) Other than those that lift their text from the FSMB recommendations and acts, someone has to think the wording through to compose a statute, even if it’s to paraphrase another state’s statute, or the FSMB. Are these thinkers/composers/regulation writers Doctors, lawyers, lobbyists, actual legislators, or what? Were these limitations legislated to be ignored? Who interprets and enforces this stuff? Do they not know that they can? Don’t they think that they should? Why would they think they should not?

    Seems to me, as written, and if taken literally, these limitations are a mighty sword to fell the dragon of woo. But nobody’s swinging the sword! Such a waste.

    I like the idea that anyone should be able to report a crime. I like the idea, also, of a spot for the public to go for the straight story about efficacy, fodder for conspiracy theorists though such a website may be. there is no help for conspiracy theorists, anyway…

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