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Copyright ©1995-2006 by RMH-Publications Trust; all rights
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My school, the North American School of Institute of Medical
Herbalism, was investigated by the state department of education
occupational schools board for the legality of what we do and teach;
they have a clause that any teaching of 'medicine' must be supervisied
by a physician. I used Roger's information for part of my defense, and
was found to be in compliance with the law by the lawyer on the board.
Probably as part of the same process, the medical board came after us
with a sting operation at our clinic, over the phone and possibly also
in person, and we passed.
What Roger has written here is not just some theoretical
bullshit — I used this approach and cited the case law he gives, and it
worked for me. I had to justify to the school board that I was not
teaching the practice of medicine, possibly because 'Medical Herbalism'
is in the school name. In reply in writing, I responded to the primary
defining section of the Colorado medical practice act which specifies
that you 'diagnose and prescribe'; I, and the interns in my clinic, have
clients sign a statement that they understand that we are not doctors,
that we do not diagnose and prescribe, and that our services do not take
the place of a physician. Then I stated that we do not use any surgical
technique (by state definition) or any legend drugs, and that the
substances we use are all legally sold over the counter and regulated as
dietary supplements. Then I cited the case law that Roger includes in
the article below. Also, we use proper language in our print materials,
informed consent, and also, very important, on the phone and in person —
we apparently got tested both ways by informants. We are also careful
about any language we put in writing in clients' files.
The system isn't broken here in Boulder, for me, as an
herbalist or any of the other herbalists in the region. No, we don't
have a righteous regulatory system, and no, the industry can't make
medical claims on products, and this is not ideal. However, the
information in Roger's article below provides a straightforward basis
for understanding how to protect our rights within a system that is not
perfect.
---Paul Bergner
June 2006
The conflict between medical monopolists and alternative health
practitioners for the past 3000 years is a tale intertwined with religious
fanaticism, greed, power lust, and common ignorance that has repeated
itself throughout numerous cycles of time. At best, one can hope for
enlightened leaders to set national and state health care policy; in their
absence, our system of laws, Constitution, and Bill of Rights give
numerous protections to individuals who know and use them when necessary
in the face of institutional abuses. Many practitioners of natural health
care are only vaguely aware of the bureaucratic and legal machinery that
can potentially sabotage their business and livelihood. Health care
practitioners who know their specific rights and responsibilities are less
likely to be targeted with harassment.
This article presents tactics and strategy that any herbalist may use
to minimize government interference in her right to assist individuals in
maintaining and improving their health using herbal products. The
information contained herein is not presented for the purpose of rendering
legal services, which can only be provided by qualified professionals.
There is frequently some risk involved in defending one's rights, and both
the author and publisher disclaim any responsibility or liability for any
loss incurred as a consequence of the use of any information herein. You
are advised to verify the accuracy of the references and quotes in this
article by reading the original sources.
Most alternative health care practitioners have heard the phrase
"practicing medicine without a license", but are unaware of the practical
definition of this phrase and its application in the legal system. One of
the most common methods for prosecuting an alternative practitioner is to
document the manner in which the practitioner describes her practice to
clients, both verbally and in printed promotional literature. Physicians
have customarily used certain terminology to describe their profession and
its purposes: "consult with patients", "treatment of disease or illness",
"prescribe remedies", "diagnose illness", "cure illness", "provide
therapy", "administer medicine", "relieve symptoms of illness", as well as
others. The routine use of these words and phrases when describing or
explaining one's profession and purpose to clients constitutes prima facie
evidence of practicing medicine. And, of course, if one doesn't have a
license to practice medicine, then one may be prosecuted for practicing
medicine without a license.
That not many alternative practitioners know the terrible significance
of these code words has been a carefully kept "club secret" among state
medical societies and prosecuting attorneys, although an increasing number
of alternative practitioners have discovered this secret. The defendant in
court may not even recognize what is occurring before his eyes and ears,
especially if he or she has used these terms routinely, unaware of their
significance. This prima facie evidence will be entered into the court
transcript, and unless challenged by the defendant or defense attorney, it
is assumed to be fact. Prima facie evidence is evidence that can be
considered proof of a violation on the face of it, unless challenged. Many
defendants do not know enough to speak up and present evidence countering
the prosecution's prima facie case. If you describe your professional
purpose using words traditionally reserved to the medical profession, it
will be difficult, but not impossible, for you to argue that you are not
practicing medicine. You will have to demonstrate that in spite of the
words you used, your intent was not to practice medicine but to help
clients improve their health. The easiest method of protecting your rights
is to avoid at the outset using medical jargon to describe your
professional purpose.
Whether or not to use medical jargon is not mere nit-picking over
words, but a question of intent. For even if you avoid using the forbidden
words, yet by your actions demonstrate that your purpose is to diagnose
and treat illness, you may still be practicing medicine. How then does one
not diagnose medical illnesses and not treat such illnesses? This is a
practical matter that delves into the root of one's philosophy of herbal
practice.
Consider the actions of a typical herbalist in dealing with a client
who asks the herbalist if she can help to cure the client's multiple
sclerosis. If the herbalist patiently explains to the client that she can
make no claims to cure anything, but that she assists people in building
the general health and resistance of the body by providing nutrients and
herbs that stimulate healing, no practice of medicine has yet occurred. If
she further explains that each individual has unique metabolic
differences, and that what may stimulate healing in one individual may be
ineffective or perhaps even harmful to another, no practice of medicine
has occurred. If she takes the client's pulse, inspects the tongue, and
asks about health history and symptoms, no practice of medicine has yet
occurred. If she provides an herbal formula, with instructions for
preparation, together with recommendations for including specific foods in
the diet, and explains to the client that certain foods may be better
suited to her body type and constitution than other foods, allowing the
body to function better, no practice of medicine has yet occurred. Thus
far, this situation is no different from that of an athletic trainer who
is recommending particular foods to an athlete to achieve maximum
performance.
Now, to go one step further, suppose the herbalist shows the client a
textbook with the herbal ingredients recommended for the client, and that
this textbook contains information about the physiological effects of the
herbs and lists a set of diseases that the herbs have been shown to
benefit. After all, the client could have obtained this information on her
own at the local library. Now we are approaching the line, but have not
yet crossed it, for the First Amendment of the Bill of Rights protects the
unrestricted flow of information of this type. However, if the herbalist
then says to the client: "These herbs will help to relieve your multiple
sclerosis," the line has been crossed. The herbalist has just claimed to
be able to cure or relieve the client's specific condition or illness, and
this is entering the domain of medical practice. Many herbalists err from
the outset by saying to their patient, "Yes I can help to cure your
multiple sclerosis, these herbs will do the job, here's your prescription
of herbal medicine. Come back next week so that we can continue your
therapy." Numerous herbalists have been entrapped and convicted of
practicing medicine without a license on the basis of testimony or tape
recordings verifying they have used such words and phrases to describe
their business.
Competent traditional Chinese herbalists are well aware of the
importance of symptoms and signs and the total context in which they
occur; such patterns lead to the choice of correct herbal formulas. In
principle, is this any different from an athletic trainer recommending to
a client who has a tendency toward Stomach Yin Deficiency (characterized
by symptoms of dry mouth and thirst yet reluctant to drink more than a few
sips at a time, nausea, tendency to feel hot and somewhat fatigued,
thready pulse) to drink diluted pear juice after a summer foot race? The
distinction between treating illness and assisting people to improve their
health is especially evident when the herbalist spends the time to educate
the client about the herbs she is taking and how to know whether they are
appropriate for her based upon her sensations. Educating clients to
maximize their sense of well-being by monitoring sensations and symptoms
to self-regulate food, herb, and spice intake is quite different mentally
and psychologically from informing clients that the herbs will cure their
illnesses.
The practitioner's words and her intent do influence the outcome, as
the following example illustrates. The author knows of many individuals
who have taken large doses of cayenne pepper in capsule form over a
prolonged period, developing signs of agitation, thirst, irritability,
localized inflammation, burning sensation in the GI tract or urethra, with
manifestation of reddish tongue tissue with fissures (which a traditional
Chinese herbalist may recognize as Deficiency of Yin). Some of these
people may have had a predisposition to developing such symptoms at the
time they began the cayenne "therapy". In almost all of these cases, the
individuals had decided to take the cayenne capsules because either a
health practitioner, a friend, or a book they read indicated that cayenne
would benefit high blood pressure, candida, arthritis, disease X, etc. The
common sense that these people may have possessed in regulating their
daily diet, such as eating watermelon when thirsty on a hot day or
drinking ginger and cinnamon tea on a cold winter night, flew out the
window when faced with the authoritative claims of Dr. So&So, Ph.D.,
professional health food pamphlet writer.
Health is a quality that people sense and perceive in their own bodies.
Medical conditions, such as emphysema, thrombocytopenia purpura, and
moniliasis are abstractions that are proper for a physician to detect,
monitor, and treat, if she can. The TCM herbalist and her client cannot
and should not operate in this realm. To do so risks loss of common sense
as demonstrated by the cayenne debacle. TCM herbalists are better off
legally and ethically when they educate their clients in listening to
their bodies' symptoms so that they can better self-regulate their own
health. Claims of cures for medical illnesses that are only detectable
with microscopes, CT scans, and blood tests changes the terrain to that of
the unseen, which neither the herbalist nor her client is capable of
perceiving directly. Medical entities should not be the focus of herb
choices for improving the client's health, a quality that one does
perceive.
Besides the medical phrases "cure illness", "prescribe medicine", and
others, use of the title "Dr." or referring to oneself as a "doctor" may
also be used as prima facie evidence of practicing medicine without a
license, when used in the context of presenting oneself as a health
practitioner. Even if you have a Ph.D. or O.M.D. degree, it is safer to
not refer to yourself as a doctor. If you do have such a degree, there is
nothing wrong (except where specifically prohibited by state statute) with
letting the public know about your education by using the specific
accredited degree designation after your name, but you should correct them
if they begin addressing you as "Dr." If you do not correct them as soon
as possible, you may be accused of passively misleading them to believe
that you are a licensed physician.
While this debate over use of the title "doctor" may seem mere word
play, the social forces behind the use of this title reveal distinctly
pernicious effects. In 1963, Yale University sociologist S. Milgram
performed a series of experiments to determine why an individual may
override her own common sense and conscience when faced with an authority
figure who commands obedience. [ref.# 1] Such matters were of great
interest consequent to public revelations of Nazi atrocities during the
Nuremberg war criminal trials.
In Milgram's study, the head experimenter commanded volunteer
participants to administer increasingly severe electric shocks to another
person by operating a control panel with clearly marked shock levels. The
dial that controlled shock level was marked with a maximum level labelled
"Danger: Severe Shock". The person being shocked was in reality an actor,
unbeknownst to the people operating the control panel under the command of
the experimenter. The purpose of the study was to determine how readily
people would obey commands to administer "Severe Shock", in spite of the
seemingly horrible consequences to the actor-victim. The results of the
study, performed on American citizens in the locale of Yale University and
New Haven, Connecticut, revealed that a surprising majority of people
would do so, allowing an authority figure to override their own
conscience. One shocking conclusion from this experiment was that the same
social forces that allow fascist governments to rule are potentially
operative in America.
Another social psychologist, H. Kelman [2], expanded upon Milgram's
work to determine those factors in the social environment that allow
individuals to override their conscience and commit destructive actions.
He determined that these factors include authorization, which legitimates
a destructive action, routinization, which reduces the destructive action
to a standard procedure of mechanical and administrative routines, and
dehumanization, which facilitates the action by minimizing or suppressing
the human and personal qualities of the targets of the action.
How is this relevant to health care? The same tendency for people in
fascist societies to commit violence against dissenters and individualists
lies at the core of "scientific" methods commonly applied to health care.
A medical procedure or treatment protocol is legitimated by a series of
scientific experiments that "proves" it has the desired action (not
necessarily from the patient's but from the medical researcher's
perspective). The scientific literature provides the initial
authorization, whereupon clinicians (and, now, insurance companies)
develop standard procedures that transform the new treatment method into a
routine procedure. Next, the medical conception of the human body as a bag
of chemicals, cells, tissues, and organs dehumanizes the patient in the
mind of well-trained and indoctrinated physicians to the point that the
patient's symptoms, feelings, and perceptions are commonly ignored as
being irrelevant to the protocol.
Finally, the doctor, who has been ordained by the high priesthood of
the medical societies, pronounces that this treatment procedure is
necessary for the patient. The full weight of this decree will be felt by
a typical member of an authoritarian society, who has been carefully
programmed from birth to obey authority for the presumed "greater good of
society", even if this may require suppressing one's instinctive
awareness, common sense, and conscience. According to Milgram, this
description fits the majority of Americans who participated in his study
in 1963. If the problem cannot be detected by scientific instrumentation,
the doctor dismisses it as being a chimera of the patient's fevered
imagination.
Wilhelm Reich, a physician who published a series of books [3] about
the psychological basis of authoritarian control strategies, revealed that
fascist societies (broadly defined, include most "civilized" nations) gain
control over their subjects by inducing them to suppress bodily instincts
(including natural sexual function), which constitute the first line of
defense of any living being against harm, and by using religious dogma and
mysticism to justify and maintain such suppression. With a whole
population of such semi-conscious people who have learned to suppress
their own natural instincts and body sensations for fear of ridicule by
authority figures, the way has been cleared for inflicting iatrogenic
medical care, an ersatz food supply lacking nutrients, and a toxic
environment that is unpleasant and ultimately deadly. The inevitable
bottled-up emotional outrage that the population would ordinarily express
toward the perpetrators of such misery is instead channeled into contrived
warfare and environmental destruction of such magnitude as to endanger not
only the health but the lives of a majority of the world's inhabitants.
Alternative health care providers who wish to promote among their
clients a greater responsibility for their lives, should present
themselves as partners in working toward a state of greater health and
self-awareness, rather than as authoritarian experts, or doctors, who
issue decrees. The authoritarian health care provider gains power by
stealing it from clients, robbing them of common sense, and leading them
to mistrust their own sensations and instincts, in many cases creating a
highly profitable, though pathetic, relationship of continual dependency.
During the last several decades, states throughout the U.S. have added
such professions as chiropractic, naturopathy, midwifery, massage and
acupuncture to the roster of licensed professions. Many practitioners of
these professions are under the illusion that having a state-granted
license to engage in one of these professions automatically grants them
the legal authority to prescribe treatments for diseases within their
scope of practice. In the case of chiropractors, many states restrict
their ability to diagnose and treat to specific illnesses of the
musculoskeletal system. In many of the other licensed health professions,
state licensing statutes often provide no explicit authority to diagnose
or treat any illness; if this is the case in your state, you should take
the same precautions as unlicensed health practitioners in avoiding the
practice of medicine.
A brief judicial history of the
prosecution of alternative health care providers in the U.S.
It has long been a principle of English and American common law that
any activity that impinges upon the rights and welfare of others, or which
created a damage to individuals or the public at large, cannot be a
natural right. Instead, such activities may be regulated and even
prohibited altogether. Such examples include dumping toxic waste and
accumulating unsanitary and disease-ridden matter where it may contaminate
others. In addition, certain privileges that are created by the state,
that are not a matter of right, such as engaging in business as a
corporation with limited liability, may also be regulated. The precedents
for such regulation are well recognized; if the government (in principle,
the People of the U.S.) creates a privilege not available to ordinary
citizens, it has a right and a duty to regulate and restrict persons and
institutions exercising such privileges to protect the public from unfair
competition and from physical harm. The Revolutionary War was fought in
opposition to such privileges of royalty and titles of nobility.
In contrast, activities of private individuals that caused no harm to
others were rarely regulated in the early history of the U.S., especially
in the western frontier regions where flexibility, common sense, and
ability to quickly adapt to new circumstances precluded the establishment
of rigid codes of behavior. The common law principle of the time
traditionally held that one could be held liable for a damage only after
the damage had been done; one could not be held liable for an activity
that had not yet harmed anyone. The ability of the state to regulate and
license private activities that ordinarily create no damage except when
performed incompetently has expanded considerably since the
post-Revolutionary era. Following the Civil War, federal and state
governments began to expand their authoritarian powers in the domain of
licensure and regulation. What had previously been left to individual
judgment and common sense was increasingly seen to be fertile ground for
new regulation and guidance by the state. The recent ascendance of
technological and industrial power in the U.S. provided the momentum for
people's faith in science as the future bringer of utopia. Along with this
faith came a willingness to subjugate formerly private affairs to
scientific scrutiny and guidance. The idea that every field of human
endeavor could be perfected, optimized, and improved by revelations of
scientific truth eventually led to the domination of medicine by the
"scientific", allopathic tradition and the elimination of homeopaths and
herbalists from the medical profession. [4] The assumption that science
would reveal truth with certainty and exclusivity led to the logical
conclusion that one could determine "the best" way of performing any task;
if such a best way existed, the argument went, why should society tolerate
any but the scientifically determined best solution to all problems?
Licensing of the health professions, as well as of many other human
activities, seemed the logical step in enforcing these "best" solutions by
law.
The social context of the late 19th century and early 20th, including
industrialism, the creation of assembly-line automation, and scientific
rigor, must be considered when studying the judicial decisions of that
period concerning health care licensure. These decisions were consonant
with the contemporary trends: standardization, optimization by scientific
method, and subjugation of private life to scientific improvement.
Several major court decisions affirmed the state's authority in
establishing licensing of the medical profession. [5] Perhaps the most
explicit of these decisions, in Dent v. West Virginia, outlined the
justification for such licensing:
The power of the State to provide for the common welfare of
its people authorizes it to prescribe all such regulations as, in its
judgment, will secure or tend to secure them against the consequences of
ignorance and incapacity as well as of deception and fraud. As one means
to this end it has been the practice of different States, from time
immemorial, to exact in many pursuits a certain degree of skill and
learning upon which the community may confidently rely, their possession
being generally ascertained upon an examination of parties by competent
persons, or inferred from a certificate to them in the form of a diploma
or license from an institution established for instruction on the
subjects, scientific and otherwise, with which such pursuits have to
deal. The nature and extent of the qualifications required must depend
upon the judgment of the State as to their necessity.
While it is recognized that patriarchal societies within the past 6,000
years of recorded history tend to enforce community standards by such
bureaucratic means (ancient Rome, Babylon, and Egypt), it is by no means
since time immemorial that this has been true. Although the collective
consciousness of the Supreme Court justices seems to extend no further
than the history of patriarchal empires and civilizations, one has only to
look back into recent history of American Indian spiritual practices and
healing traditions to observe that there exist very different modes for
community development of the health care professions. Such modes include
introspective, self-referential criteria of appropriateness, based on
common sense and a deep appreciation for man's connection with nature.
Since European civilization seems to have lost its reverence for nature,
the organic common sense that accompanies such reverence has been replaced
by hierarchies of bureaucrats who presume to make their decisions based on
the decrees of scientists. The mess that science and technology have made
of the natural environment during recent centuries speaks volumes about
the incompetence of bureaucrats in controlling the functions of modern
society, including health care.
In State v. Grovett [6] (1901) the Supreme Court of Ohio ruled that a
state cannot impose unreasonable or impossible requirements upon a
profession or school of medicine so as to effectively prevent its
practice. Grovett was an osteopath charged with practicing medicine
without a license, under the statutes of Ohio that stipulated one is
regarded as practicing medicine, whoever "shall prescribe, or who shall
recommend for a fee for like use, any drug or medicine, appliance,
application, operation or treatment, of whatever nature, for the cure or
relief of any wound, fracture, or bodily injury, infirmity, or disease."
Further stipulations of the Ohio statutes required osteopaths to pass
medical courses relevant to the prescribing of drugs while at the same
time prohibiting them from prescribing these very drugs. Such requirements
were ruled unconstitutional under the due process and equal protection
clauses of the 14th amendment, which, as interpreted by the court,
requires licensing requirements to be reasonable and appropriate to the
profession being regulated. Never at issue here was the fact that Gravett
did "prescribe and recommend for the use of one Martha Huddle a certain
application, operation, and treatment, to wit, a system of rubbing and
kneading the body, commonly know as 'osteopathy,' for the treatment, cure,
and relief, of a certain bodily infirmity or disease..." Had Gravett made
a disclaimer to Martha Huddle that his system of osteopathy was not
intended to treat specific diseases but to improve health, this case may
have never reached the Supreme Court of Ohio and may well have been thrown
out of court at the beginning.
Considering the Gravett decision, one marvels at the disparity between
what the courts have ruled is law, and the actual state of affairs in the
health care industry during the 20th century. The organized allopathic
medical syndicates have hounded competing medical traditions such as
homeopaths and herbalist physicians out of business and ostracized and
harassed members of the mainstream allopathic tradition who dare to use
herbs and other natural remedies, effectively violating the principle
handed down in the Gravett decision that licensing regulations shall not
prevent the practice of competing medical traditions.
It is only recently that the alternative health care traditions are
making headway against established orthodoxy in the realm of law. The
principle of the Gravett decision, that professional licensing standards
must be reasonable and proper to the effective and safe practice of such
profession, has been increasingly revived as a guideline in the regulation
of health professionals. Ironically, however, legislative turf battles
among members of different alternative health professions frequently
involve attempts to violate this principle. As an example, proponents
among the professional acupuncture community for making Chinese herbal
practice the special prerogative of acupuncturists should ponder the
Gravett decision well, for the National Commission for the Certification
of Acupuncturists (NCCA) has determined that knowledge of acupuncture
technique is not relevant to practice as a Chinese herbalist. Any
requirements placed upon the practice of a profession that are unrelated
to its safe and effective practice are unconstitutional and violate the
due process and equal protection clauses of the 14th Amendment.
In State v. Biggs [7] (1903) the Supreme Court of North Carolina issued
a strong decision supporting the rights of alternative health
practitioners, in which it reaffirmed that medical licensing laws may be
enacted solely to protect the public, not to further the economic
privileges of the medical profession, and that a legislative act that
attempts to limit the right of patients to seek less expensive and complex
modes of treatment is not a legitimate exercise of the police power. A
lower court had found Biggs guilty of practicing medicine without a
license; he advertised himself as a "non-medical physician", claimed to
cure disease by a system of drugless healing, and treated patients by
massage baths, physical culture, manipulation of muscles, bones, spine,
and solar plexus, and by advising patients what to eat and what not to
eat. In spite of the numerous medically incriminating phrases used by
Biggs, he successfully argued his case on appeal to the North Carolina
Supreme Court. (Chiropractic was not a licensed profession then in North
Carolina; if it had been, the ruling probably would have been different.)
The central issue in State v. Biggs was that the legislature of North
Carolina had passed statutes that attempted to prohibit all other forms of
primary health care, other than by allopathic medicine. The statute
included the following definition of medicine and surgery:
For the purposes of this act the expression 'practice
medicine and surgery' shall be construed to mean the management for fee
or reward of any case of disease, physical or mental, real or imaginary,
with or without drugs, surgical operation, surgical or mechanical
appliances, or by any other method whatsoever; ...
According to the court's ruling, the preceding statute would imply the
following:
That is, the practice of surgery and medicine shall mean
practice without surgery or medicine, if a fee is charged....Where then
is the protection to the public, if such treatment is valid when done
without fee or reward? Yet, unless the act confers, and is intended
solely to confer, protection upon the public, it is invalid. The
Legislature cannot forbid one man to practice a calling or profession
for the benefit or profit of another.
The court went on to speak of monopolies:
Is this not the creation of a monopoly, and the worst of
monopolies, that diseases shall not be cured or alleviated, whether real
or imaginary, mental or physical, though without medicine or surgery,
'if for a fee,' unless one has undergone an examination on 'anatomy,
physiology, surgery, pathology, medical hygiene, chemistry, pharmacy,
materia medica, therapeutics, obstetrics and the practice of medicine?'
...The act is too sweeping. Besides, the Legislature could no more enact
that the 'practice of medicine and surgery' shall mean 'practice without
medicine and surgery' than it could provide that 'two and two make
five,' because it cannot change a physical fact.
In the1850's and 1860's, many states passed limited medical licensing
acts, which prohibited the practice of medicine and surgery without a
license, but which also specified that the only penalty for violating
these acts would be an inability to apply to the courts for recovery of
fees charged to patients who were billed on credit; such acts specifically
stated that no one who should practice without such a license should be
guilty of a misdemeanor. In other words, in most states during this period
in U.S. history, there were no criminal penalties associated with
practicing medicine without a license. (There were however, statutes
penalizing fraud and misrepresentation that were applicable to all
business activities; if one claimed to have training as an M.D., and did
not, such fraudulent claim has always been recognized as being unlawful.)
Even these acts were cautiously debated in the state legislature of North
Carolina, as many legal experts of the day cautioned that such acts would
violate the equal protection clause of the 14th Amendment, and would also
violate the section of the North Carolina Constitution prohibiting
monopolies and prohibiting exclusive privileges and emoluments (salary or
fees) to any set of men.
The court in the Biggs decision reviewed the legislative history of the
Medical Practice Act:
The constitutionality of this last statute [prohibiting
unlicensed medical practitioners from recovering fees in court] was
fully considered, and after a most able argument against it by counsel
was sustained by this court, but not without great hesitation, and upon
the ground solely that the act was 'an exercise of the police power for
the protection of the public against incompetents and impostors, and in
no sense the creation of a monopoly or privilege.'
In summarizing its justification for reversing the conviction of Biggs,
the court states
In the cure of bodies, as in the cure of souls, 'orthodoxy
is my doxy, heterodoxy is the other man's doxy,' as Bishop Warburton
well says. This is a free country, and any man has a right to be treated
by any system he chooses. The law cannot decide that any one system
shall be the system he shall use.
and quotes a decision in a U.S. Supreme Court case, Lawton v. Steele,
concerning the proper exercise of the police powers: [8]
The Legislature may not, under the guise of protecting
public interests, arbitrarily interfere with private business, or impose
unusual or unnecessary restrictions upon lawful occupations. In other
words, its determination of what is a proper exercise of its police
power is not final or conclusive, but is subject to the supervision of
the courts.
During the period following the Biggs ruling, other courts have limited
and reduced the applicability of State v. Biggs. While many of its
principles concerning due process and equal protection are as relevant
today as they were in 1903, many courts have severely restricted the
ability of non-medical health practitioners to use the title "doctor" or
"Dr." in the context of health care. In State v. Bain [9] (1954) the
Montana Supreme Court upheld Bain's conviction for practicing medicine
without a license. Bain, a physiotherapist, referred to himself as "Dr.
Bain" in all of his letters, advertising, and interaction with patients.
He advertised himself as a physiotherapist, heart specialist, and general
practitioner, and told the public that he treated diseases and ailments of
the human body, particularly of the heart, by prescribing and using
physical agents such as light, heat, cold, water, electricity, and
massage. These claims were apparently too blatant for the court to not
consider as the practice of medicine, and Bain's conviction was upheld.
Historically, the State v. Biggs ruling is important for its clarification
of principles of law, but can no longer be cited as legal justification
for non-medical practitioners to use the title "doctor" or any of the
other medical phrases we have already discussed, because medical practice
statutes have been considerably amended since then.
Consistent with the decision of State v. Bain, Reeves v. State [10]
(1927) was another case of an alternative health practitioner convicted of
practicing medicine without a license solely on the evidence that he
referred to himself as "Dr." in the context of providing health care,
advertising his services as "Specialist in Chronic Diseases". His
conviction was upheld by the Criminal Court of Appeals of Oklahoma.
The case of People v. T. Wah Hing [11] (1926) illustrates the
prosecution of an ethnic Chinese herbalist, unfamiliar with the legal
significance of English words, and who was convicted primarily on the
basis of his use of the word "medicine" to describe the herbs he dispensed
and the word "doctor" to refer to himself. One of the witness's testimony
illustrates the gist of the prosecution's case:
A third witness testified that she was present in the
McBride home on one occasion when the defendant called there and
remained for 15 or 20 minutes; that Mrs. McBride 'told the defendant she
was awful sick'; that he 'tried Mrs. McBride's pulse' and 'gave her a
dose of medicine'; that he left three kinds of medicine and gave the
witness directions 'how to give this medicine'; ...and that he was
addressed as 'Dr. Hing' while there and 'didn't say anything about' the
use of the word 'doctor.'
The above dialog quoted from the court record reveals that if an
herbalist is addressed as "doctor" by a client, and if he then fails to
correct the client and clarify that he is not a doctor of medicine, this,
also, may be used as prima facie evidence of practicing medicine. The
court record continues to show numerous occasions on which "Dr. Hing"
referred to himself as such, and others on which patients called him "Dr.
Hing", as in the following testimony:
...on that occasion a 'colored lady came in and says: "Dr.
Hing?" He says: "Yes." She says: "I have pains in my stomach; I would
like some medicine." ... Dr. Hing says: "I am busy now; you come back
after a while; I'll fix you up."'
The California appeals court affirmed the conviction of the lower court
on the totality of such evidence. Unfortunately, Dr. Hing did not
recognize the terrible significance of "doctors" and "medicine". If his
case was typical, he may not have even recognized the significance after
the trial, for the judges and attorneys go about much of their business
without revealing principles of law and mechanisms of legal procedure to
either the jury or to the defendant, unless the court deems it necessary.
A key element of the practice of medicine is the diagnosis of disease
and the claim to cure and relieve such illness or disease. According to
American Jurisprudence [12],
Diagnosis of the patient's symptoms to determine what
disease or infirmity he is afflicted with, and then to determine and
prescribe the remedy or treatment to be used in attempting to cure him,
have been said to be necessary elements of the practice of medicine or
surgery.
In Frank et al. v. South et al. [13] (1917) the Kentucky Court of
Appeals ruled that the administration of anesthetics by a nurse under the
direct supervision of a licensed physician was not the practice of
medicine, since the nurse performed no diagnosis nor did she claim to cure
any disease by her actions; her duties were confined to the carrying out
of routine instructions from the doctor, and even though considerable
judgment may be involved in the carrying out of the nurse's duties, this
does not constitute diagnosis. In State v. Rolph [14] (1918) the Supreme
Court of Minnesota ruled that the act of diagnosing an illness itself
constituted the practice of medicine, regardless of whether any treatment
was given for the condition. In this case, a chiropractor who advertised
herself as "Dr. B. Elizabeth Rolph", who advertised that her services
would be available in a certain community, diagnosed a particular patient
who came to her for help as having an abdominal tumor, for which she
recommended seeing a surgeon to have it removed. Although Dr. Rolph
provided no treatment herself for this condition, she was nevertheless
convicted of practicing medicine without a license, and her conviction was
upheld by the Minnesota Supreme Court.
The statutes governing the practice of medicine, while sharing many
common attributes among the various states, also may vary in their
specific wording. The case of Foo Lun v. State [15] (1907) highlights the
importance of knowing the specific statutes governing medical practice in
the state where an individual engages in an alternative health practice. A
lower court had convicted Foo Lun of practicing medicine without a license
on the basis of evidence consisting of one incident of an undercover agent
going to Foo Lun's office and requesting "medicine" from him. On the
agent's testimony and that of the county clerk that Foo Lun had no license
to practice medicine, he was thereupon convicted. The use of such
undercover agents to gather evidence is common when a local medical board
has determined that one may be practicing medicine without a license. Foo
Lun appealed to the Supreme Court of Arkansas, who determined that since
the statutes of Arkansas failed to explicitly define what the Legislature
meant by the practice of medicine, the court decided to use a definition
commonly applied by courts in the absence of such explicit definitions. At
that time, section 5243 of Kirby's Digest was used for such definition:
...any person shall be regarded as practicing medicine, in
any of its departments, who shall append M.D. [Latin: Medicinae Doctor]
or M.B. [Medicinae Baccalaureus] to his name; or repeatedly prescribe or
direct, for the use of any person or persons, any drug or medicine or
other agency for the treatment, cure or relief of any bodily injury,
deformity or disease. [italics added]
Foo Lun's conviction was reversed because the definition applied by the
court included the act of repeatedly prescribing medicine; the lower court
had only proven a single incidence, even though it was likely that he
repeatedly engaged in such activity, by the fact that he had an office and
charged for his service.
Louisiana State Board of Medical Examiners v. Craft [16] (1957) is
another case where statutes narrowly defining the practice of medicine
provided a successful appeals argument for Craft, a massage practitioner.
These statutes defined the practice of medicine as
the holding out of one's self to the public as being engaged
in the business of diagnosing, treating, curing, or relieving any bodily
or mental disease, condition, infirmity, deformity, defect, ailment, or
injury in any human being other than himself whether by the use of any
drug, instrument or force, whether physical or psychic, or of what other
nature, or any other agency or means; or the examining either
gratuitously or for compensation, of any person or material from any
person for such purpose whether such drug, instrument, force, or other
agency or means is applied or used by the patient or by another person;
or the attending of a woman in childbirth without the aid of a licensed
physician, surgeon, or midwife; or the using of any other title other
than optician, to indicate that he is engaged in the business of
refracting or fitting glasses to the human eye.
The court ruled that merely suggesting to another that he take an
aspirin to relieve a headache is not practicing medicine under the meaning
of the statute, unless one holds oneself to be publicly engaged in the
business of diagnosing, treating, or curing illness. The incidental
actions of diagnosing and treating, themselves, are not evidence of
practicing medicine; for example, a massage practitioner who incidentally
recommends diet and exercises for the relief of symptoms is not practicing
medicine unless she also holds out to the public that she performs
diagnosis and treatment of illness as a part of her business. Many state
courts now interpret medical licensing statutes more narrowly, similarly
to the Craft decision, to prevent the licensing laws from being used to
harass individuals who are clearly not practicing medicine.
The case of Shelton v. State [17] (1964) reveals how a Texas
chiropractor advertised and described his own work in such a manner as to
successfully defeat a lower court's attempt to convict him of practicing
medicine without a license. Shelton, a licensed chiropractor, was judged
by the Texas Court of Criminal Appeals not to have unlawfully practiced
medicine, primarily because he had never publicly professed to be an M.D.,
a physician, or a surgeon. In addition, he advertised his business as
offering the following: "Corrective Exercise / Health Instruction / Toxin
Elimination Physical Culture / Rational Fasting / Body Moulding / Natural
Diet / Sun Bathing / Rest. Not a Medical Institution. NO Medicines, Drugs,
Serums, Vaccines, Surgery." Besides this printed disclaimer, Shelton
successfully avoided all the prohibited jargon, and his only dubious
statement that hinted of a claim to cure illness, as testified by an
undercover agent who claimed to have an ulcer, was that "he could get rid
of the ulcer if I would stay in this establishment for six weeks." Shelton
testified in his own behalf that he had never claimed to anyone to be an
M.D., physician, or surgeon, and that he believed the human body could
cure its own ills.
The Shelton case serves as a reminder that even licensed, non-physician
health care professionals are at risk of being prosecuted for practicing
medicine without a license if the state statutes governing their
professional scope of practice do not include the authorization to
diagnose and cure illness. The precautions these professionals must follow
are the same as for unlicensed professionals. Shelton's mode of
advertising and presenting himself to his clients serves as a model for
alternative practitioners to follow, with the exception of his risky claim
to be able to "get rid of the ulcer".
In summary, the judicial history of prosecution of alternative health
care providers reveals the overwhelming reliance of the courts on the
manner in which a defendant describes his or her own practice, and the
specific words used. The rights of alternative practitioners to practice
their art has rarely been questioned by the courts. Rather, they have
often been prosecuted for using words and language reserved by the medical
profession to exclusively describe their business to the public. There is
much logic in this approach, which is an extension of the statutes
governing fraud and misrepresentation. It has always been considered
unethical and unlawful for one to lie to the public about one's training
and abilities.
The problem is that, while the legislatures and courts claim that their
only purpose is to prevent the public from being deceived as to the
qualifications of health care workers and to establish high standards for
a complex profession responsible for people's life and health, in reality,
economic and political forces have subverted this goal and have maneuvered
public health policy to ensure increased profits. These nefarious forces
subvert the legislative and judicial processes by legal trickery and word
games. The lives and livelihoods of many honest and well-meaning
alternative health practitioners have been destroyed by such trickery. On
the other hand, many alternative practitioners have fallen for the
temptation of enhancing their status in a patriarchal, authoritarian
society by awarding themselves titles such as "doctor". It is the intent
of the author to educate alternative health providers about the true and
valid purpose of the law, to point out to them the nature of their rights,
and to overcome the power of the word tricksters and political con men by
deflating their games.
There will always be those who believe in the unlimited powers of an
authoritarian government to protect people from abuse by unqualified or
unscrupulous practitioners and by outright charlatans. History, however,
reveals a different story: the abuses of government regulatory
bureaucracies often greatly exceed the abuses by individuals. The
potential abuses of herbal products will be with us as long as plants and
fallible people coexist on the earth. Experience has shown that this
problem cannot be regulated away. People throughout the world will
continue to use herbs, even when their rulers decide to outlaw or restrict
the use of herbs. Instead, it seems best to follow the advice of Thomas
Jefferson:
I know of no safe depository of the ultimate powers of the
society but the people themselves: and if we think them not enlightened
enough to exercise their control with a wholesome discretion, the remedy
is not to take it from them, but to inform them.
- Elias, Stephen and Levinkind, Susan; Legal Research: How to
Find and Understand the Law; Nolo Press, Berkeley, California,
c1992. An invaluable guidebook for using the law library.
- Barnett, James D.; "Public Licenses and Private Rights";
Oregon Law Review, December 1953, 33:1-15.
- [1] Milgram, S. (1963); Behavioral studies of obedience;
Journal of Abnormal and Social Psychology, 67, 371-378.
- [2] Kelman, H. (1973); Violence without moral restraint.
Journal of Social Issues, 29, 25-61.
- [3] Reich, Wilhelm; The Mass Psychology of Fascism; St.
Albion Press; c1970.
- [4] Wicke, Roger W.; "TCM Herbalist's Realpolitik, Part 2: A review
of issues relevant to regulating Chinese herbal practice";
Abstract and Review of Clinical TCM, April 1995 (II), pp.
60-67.
- [5] Semler v. Oregon State Board of Dental Examiners, 294 U.S.
(U.S. Supreme Court Reports) 608 (1935).
Graves v.
Minnesota, 272 U.S. 425 (1926).
Dent v. West Virginia, 239 U.S. 114,
122 (1889).
- [6] State v. Grovett, 65 Ohio St 289, 62 NE (Northeastern
Reporter) 325 (1901).
- [7] State v. Biggs, 133 NC 729, 46 SE (Southeastern
Reporter) 401 (1903).
- [8] Lawton v. Steele, 152 U.S. 137, 138.
- [9] State v. Bain, 130 Mont 90, 295 P2d (Pacific Reporter,
series 2) 241 (1954).
- [10] Reeves v. State, 36 Okla Crim 186; 253 P 510 (1927).
- [11] People v. T. Wah Hing, 79 Cal App 286; 249 P 229 (1926).
- [12] 61 Am Jur 2d (American Jurisprudence, series 2)
§35 p.182.
- [13] Frank et al. v. South et al., State Board of Health, 175 Ky
416; 194 SW (Southwestern Reporter) 375 (1917)
- [14] State v. Rolph, 140 Minn 190, 167 NW (Northwestern
Reporter) 553 (1918).
- [15] Foo Lun v. State, 84 Ark 475; 106 SW 946 (1907).
- [16] Louisiana State Board of Medical Examiners v. Craft, 93 So 2d
(Southern Reporter, 2nd series) 298 (1957).
- [17] Shelton v. State, 377 SW2d 203 (1964).
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