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Medical board discipline for complementary, alternative & integrative medical therapies

By Michael H. Cohen, Esq.

Medical board discipline for complementary, alternative & integrative medical therapies is a concern our attorneys address when physicians integrate CAM into their practices and clinics.

Disciplinary provisions for "unprofessional conduct" or "professional conduct" vary by state.

Here is one analysis, which we conducted for a client located in Georgia.  Of course, a similar approach, tailored to New York, California, Massachusetts, Oregon, Vermont, or any other state, could be conducted:

            The disciplinary provisions allow the GCMB to discipline a physician for conduct including when the physician has:[1]

(6) Advertised for or solicited patients; obtained a fee or other thing of value on the representation that a manifestly incurable disease can be permanently cured; or made untruthful or improbable statements, or flamboyant or extravagant claims concerning his or her professional excellence or treatment protocols;

(7) Engaged in any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice need not have resulted in actual injury to any person. As used in this paragraph, the term "unprofessional conduct" shall include any departure from, or failure to conform to, the minimum standards of acceptable and prevailing medical practice and shall also include, but not be limited to, the prescribing or use of drugs, treatment, or diagnostic procedures which are detrimental to the patient as determined by the minimum standards of acceptable and prevailing medical practice or by rule of the board.[2]

            The language in (6) certainly cautions against exaggerating claims concerning the benefits of CAM therapies. It is a good practice to have counsel review your website and any major changes in website language and advertising that will discuss functional or CAM methods.

            More generally, the broad language in (7) concerning 'any departure' from 'minimum standards of acceptable and prevailing medical practice' allow the Board at their discretion to investigate and potentially impose discipline for nonstandard practices, be they the different diagnostic and treatment reasoning contained in functional medicine or complementary or alternative methods such as computer-based GSR devices such as NES. The risk of such intervention by the Board is greatest when a CAM therapy is used in lieu of conventional care.

            This has been a long-standing issue for physicians practicing CAM in other states with statutes containing similar language. Historically, the issue came to a head with In re Guess,^[1] a 1990 case decided by the North Carolina Supreme Court. Guess was an MD who used homeopathy as a last resort. The state medical board charged him with 'unprofessional conduct' under a state statute defining the same as any departure from 'standards of acceptable and prevailing medical practice in the state.' Even though patients testified at the medical board hearing that Guess had only helped them, and there was no evidence that he had ever harmed a patient, the Board revoked his licensed based on the statutory definition. After a trial and an appeal, the state Supreme Court upheld the revocation, noting that the statute allowed revocation without any showing of injury to a patient.[3]       

            Georgia has an 'Access to Medical Treatment Act.'[4] This legislation provides:

(b) Notwithstanding any other provision of law, and except as provided in subsection (c) of this Code section, an individual shall have the right to be treated for any illness or disease which is potentially life threatening or chronically disabling by a person licensed to practice medicine under this article with any experimental or nonconventional medical treatment that such individual desires or the legal representative of such individual authorizes if such person licensed to practice medicine under this article has personally examined such individual and agrees to treat such individual.

(c) A person licensed to practice medicine under this article may provide any medical

treatment to an individual described in subsection (b) of this Code section if:

(1) There is no reasonable basis to conclude that the medical treatment itself, when administered as directed, poses an unreasonable and significant risk of danger to such individual; and

(2) The person licensed to practice medicine under this article has provided the patient with a written statement and an oral explanation, which the patient has acknowledged by the patient's signature or the signature of the patient's legal representative, that discloses the facts regarding the nature of the treatment, specifically including that the treatment offered is experimental or nonconventional, that the drug or medical device has not been approved by the Food and Drug Administration for any indication, as well as the material risks generally recognized by reasonably prudent physicians of such treatment's side effects.

(d) The treatment of patients in compliance with this Code section by a person licensed to practice medicine under this article shall not by itself constitute unprofessional practice or conduct.

            Note that the carve-out the Act provides for CAM is limited to treating a patient 'for any illness or disease which is potentially life threatening or chronically disabling.' This is a much more limited carve-out than, as noted, some other states provide for physicians using CAM.

            Although medical boards in other states with similar statutes have deployed the 'any departure' language against physicians who have integrated CAM therapies, such a broadly worded provision—together with Georgia's narrow statutory carve-out—certainly does not mean that including CAM will lead to discipline. The language does, however, suggest caution. As we discussed in our conference call, the use of nonstandard diagnostic tests such as saliva-based horomonal work-ups or narrower reference ranges when interpreting tests such as TSH for the diagnosis of hypothyroidism can raise standard of care issues when they cross into areas for which the Board is not willing to allow for professional differences of opinion.

            Judging the risk of adopting functional or CAM practices is an uncertain enterprise that ideally includes researching what methods have resulted in discipline in Georgia in the past, how the medical community views the method, whether the method is supported by a national organization that is able to issue CMEs for training in the method, the extent to which the method supplants a conventional method that is seen as well-established, the risks of the functional or CAM method and respective risks with any competing conventional approach, and the regulatory posture of FDA when relevant.

            It is important to recognize that disciplinary cases are fact bound and rarely arise as a simple charge that a 'forbidden' therapy is being done. Cases almost always involve the details of how the therapy was practiced, the quality of the medical reasoning and decision making in a number of cases as well as the quality of the record keeping. Two physicians could incorporate a given CAM therapy into that practice and one never have any difficulty and the other be disciplined, because one may practice good medicine and use the therapy as as energetic adjunct while the other wanders into its use in clinical decision making.

            With regard to the nonconventional nature of these therapies, however, in the context of malpractice defense, there is a legal defense to medical malpractice known as the 'respectable minority' doctrine. The rule essentially states that a physician who undertakes a mode of treatment that a respectable minority within the profession would undertake under similar circumstances, does not incur liability for negligence merely because the physician substituted such an approach for the more generally approved one.

            While one could argue that functional medicine has garnered such a respectable minority, this does not necessarily apply to the Board, which has significant leeway to set standards of care. In other words, 'respectable minority' is a defense to a medical practice action, but in a disciplinary case, the medical board may or may not respect a standard of care deviation based on the existence of such a professional minority viewpoint. At the same time, however, that a functional approach at issue is taught at conferences sponsored by such respectable minority organizations, such as the American College for Advancement in Medicine or the Institute for Functional Medicine is useful. Collecting CME credits for functional approaches of interest is an important defensive consideration, as the granting of credits for course content that includes a questioned therapy is valuable evidence that at there is some recognition of the therapy.  

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Our health care, business law, and alternative medicine law attorneys regularly consult and advise on telemedicine and other health care law and business legal matters involving online enterprises and emerging or established companies.  For legal advice concerning telemedicine and other health care practices, whether involving physicians, nurses, psychiatrists, psychologists, life coaches, fitness consultants, or CAM providers such as acupuncturists, nutritionists and dietitians, homeopaths, naturopathic physicians, hypnotherapists, energy healers, and others, contact our health care lawyers today.

Our law firm has many successes with health care and business law clients, whose practices are transforming the business and health care landscape as we know it.

Michael H. Cohen is an attorney providing business legal advice to green entrepreneurs and companies, and health care law advice to businesses and physicians, acupuncturists, naturopaths, homeopaths and others in the holistic health, wellness, and green industries. As a founding attorney of the Global Vision Law Group, he represents businesses poised for vertical lift, whose leaders are conscious, intuitive, and committed to shaping a better world. Michael also advises medical spas and integrative medicine clinics, physicians, chiropractors, naturopathic physicians, massage therapists, energy healers, nutritionists and herbalists, dietary supplement and cosmetics companies, and businesses with bio-energy and other technologies and medical devices. Michael offers the Entrepreneur's Legal Toolkit as a series of legal guides to businesses. The first legal e-book deals with Contract Essentials, giving legal tips every business needs to negotiate its legal agreements; the second addresses legal issues faced by multi-level marketing companies and individuals involved in multilevel marketing and direct sales; and the third one so far is a HIPAA Regulations and Privacy Manual at far less the cost than it would take for an attorney to prepare.

Michael also sponsors Being Central, a Portal for Potential, which gives access to other, pre-paid legal services. 

Read reviews of Michael's work on the Complementary and Alternative Medicine Law Blog. And visit the Flat Rate Legal Services page for information on legal services offered at a flat rate or project fee (such as incorporation for entrepreneurs, review and drafting of business contracts, trademark, and health law services for CAM providers and others).

Michael's clientele  through the Global Vision Law Group includes businesses not only in California, New York, Maryland, Massachusetts, Washington, D.C., and other U.S. states, but also abroad. To speak with a lawyer about health care law issues pertaining to complementary and alternative medicine, or to consult a business lawyer about laws and legal issues for entrepreneurs and new enterprises that are seeking legal advice, contact the Global Vision Law Group today. 

 

Full post as published by Complementary And Alternative Medicine Law Blog on February 27, 2010 (boomark / email).