II. MEDICAL PRACTICE ACTS


The third general category of alternative health care legislation in the United States consists of provisions in medical practice or uniform disciplinary laws which conditionally limit the authority of a state medical board to discipline a physician who practices an alternative modality. The succeeding discussion reviews recent statutes which embody this approach.


A. Alaska
In 1990 Alaska began what is now an emerging legislative trend among the states to address the interests of alternative physicians and their patients. The medical practice act in that state directs that the state medical board "may not base a 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 a patient.''] Under this law, a showing of actual physical harm to a patient would seem necessary to support a finding of professional incompetence, regardless of the effectiveness of the therapy or the degree of intrinsic risk the therapy might pose for a patient before actual treatment.


B. Washington
The state of Washington amended its uniform disciplinary act in 1991 to declare that "the use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be The reference in the Washington statute to the "unreasonable risk that a patient may be harmed" seems to provide the medical board in that state with greater administrative leeway in disciplining an alternative physician than is apparent under the law in Alaska. Specifically, the relevance of risk assessment under the Washington statute suggests that, even in the absence of actual physical harm to a patient, the medical board could take disciplinary action against an alternative physician for professional misconduct.


C. North Carolina
In 1993, North Carolina enacted a statute that keys the disciplinary authority of the state medical board explicitly to either (1) a comparison involving the relative safety of utilizing an alternative versus an allopathic form of treatment, or (2) an evaluation of the relative effectiveness of the alternative form of treatment itself. The law provides that:

The Board shall not revoke the license of or deny a license to a person solely because of that person's practice of a therapy that is experimental, nontraditional, or that departs from acceptable and prevailing medical practices unless, by competent evidence the Board can establish that the treatment has a safety risk greater than the prevailing treatment or that the treatment is generally not effective.[3]

Unlike the laws in Alaska and Washington, the North Carolina statute makes no direct reference to actual or potential harm to the patient, but imports a somewhat more abstract standard involving either (1) the effectiveness of the alternative treatment as such, or (2) a comparative standard assessment of its risk relative to a prevailing treatment.

In an actual case, it is arguable that the comparative safety or effectiveness evaluations mandated by the North Carolina law authorize the admission of a broader range of scientific and clinical evidence than would otherwise be possible under a statutory test that focuses solely on actual or potential harm to a specific patient.


D. South Dakota
In 1993 South Dakota enacted a more limited version of the preceding enactments in prohibiting the Board of Medical and Osteopathic Examiners in that state from basing a finding of unprofessional or dishonorable conduct solely on the basis that a licensee practices "chelation therapy."[4] Of the six state laws that conditionally allow physicians to use alternative modalities, only South Dakota's statute predicates the practice rights of the physician on the use of a particular therapy.


E. New York
After several years of legislative consideration of a measure that would have required the informed consent of the patient and defined "alternative medical treatment" by reference to multiple institutional and scientific criteria, New York adopted a straight forward law in 1994 specifying that the medical practice act in that state may not be construed to affect or prevent "[t]he physician's use of whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition."[5]

On its face, the New York statute seems more restrictive than Alaska's law, inasmuch as the failure of a treatment to cause "demonstrable physical harm to a patient," which is the litmus test under the Alaska statute, presumably would not demonstrate the effectiveness of the treatment for purposes of the New York enactment. On the other hand, to the extent that the validity of a particular therapy under New York's law would not be determined by the degree of risk to a patient before actual treatment, but solely on the basis of the treatment's effectiveness after administration to a patient, the New York legislation may be more permissive than the Washington statute. It is not clear, however, at least from the text of the New York law, when the effectiveness of a treatment must be determined.

New York law also alters the composition of the State Board for Professional Medical Conduct by requiring that, of the eighteen physician members of the board, no fewer than two must be physicians who dedicate a significant portion of their practice to the use of non-conventional medical treatments.[6] New York state medical associations dedicated to the advancement of these treatments may nominate the two non-conventional physicians and make experts available for consultation in connection with the medical board's investigation of cases involving clinical practice.[7] The law further mandates that the Physician Disciplinary Process Evaluation Panel, which is charged with assessing the quality of physician discipline in the state, report to the Governor and legislature by June 1, 1995, concerning (1) the use of non-conventional medical experts in the investigation of complaints involving clinical practice, and (2) the appointment of non-conventional physicians to committees on professional medical conduct which hear a case involving a non-conventional physician.[8]


F. Oklahoma
Oklahoma also enacted legislation in 1994 to accommodate alternative physicians by redesignating its medical practice act as the "Allopathic Medical and Surgical Licensure and Supervision Act" (emphasis supplied) and by adopting several related amendments to circumscribe the authority of the state medical board.[9] Accordingly, nothing in the renamed act "shall prohibit services rendered by any person practicing any nonallopathic healing practice."[10] Moreover, the state medical board may not deny a license to a person who is otherwise qualified to practice allopathic medicine under the act solely because that person practices a therapy that is experimental or nontraditional.[11] Finally, the law prohibits the medical board from revoking the license of an otherwise qualified physician solely because the physician practices an experimental or nontraditional therapy.[12]

Unlike other medical practice statutes that accommodate the practice rights of alternative physicians, the Oklahoma law does not specify the conditions under which the state medical board may take disciplinary action against a licensee. For example, there is no standard in the statute which keys the board's disciplinary authority to the risk or absence of harm to the patient or to the effectiveness of the alternative treatment. The law simply prohibits the board from revoking a license or taking disciplinary action "solely because the person's practice or a therapy is experimental or nontraditional." Compared to other statutes in this subject area, Oklahoma's law appears to grant the state medical board greater administrative flexibility in disciplining an alternative physician, particularly as the new legislation also preserves the pre-existing authority of the board to take disciplinary action "as deemed appropriate based upon the merits of each case."[13]

Although, as indicated, the Oklahoma statute declares that the legislation does not prohibit services rendered by "any person practicing any nonallopathic healing practice," it is unclear whether this broad disclaimer automatically guarantees the practice rights of nonphysician alternative providers who are not otherwise authorized to practice under state law. In this regard, alternative practitioners may remain subject to another Oklahoma statute which generally requires all health care providers to be licensed or certified by the state to practice a healing art.[14]


G. Maryland Commission on Complementary Medical Methods
After several years of unsuccessful legislative efforts to pass a statute along the lines of the ones in Alaska and Washington, Maryland in 1993 established a Commission on Complementary Medical Methods to study how to allow Maryland physicians to use alternative modalities with patients who wish to be treated in this way. The Commission is specifically charged with:

defining which health care methods are complementary medical methods being used by Maryland physicians;

(2) evaluating the costs, benefits, and risks associated with the use of complementary medical methods;

(3) determining how best to inform patients of the benefits and risks associated with the use of complementary medical methods and the availability of other methods of treatment; and

(4) reporting recommendations to the Governor and the General Assembly by December 1, 1995.

The Commission is composed of two members of the state legislature, the Secretary of the state Department of Health and Mental Hygiene, two members of the State Board of Physician Quality Assurance, two representatives from the Medical and Chirurgical Faculty of Maryland, one Maryland physician with expertise in the use of complementary medical methods, one person representing hospitals in the State, two patients or former patients of physicians who use complementary medical methods, and two members of the general public.[16]

The principal accomplishment of the Commission to date has been the formulation of a definition of "complementary medical method" pursuant to its statutory charge. The definition follows the one used by the British

Medical Association and states that complementary medical methods are "those forms of treatment which are not widely used by conventional health care professionals and the skills of which are not taught as part of the of conventional medical and paramedical health care."[17] The Commission will terminate its existence after making its required report by December 1, 1995.[18]


1. Alaska Stat. § 08.64.326(a)(8)(A) (1991).

2. Wash. Rev. Code Ann. § 18.130.180(4) (Supp. 1994). Washington's Uniform Disciplinary Act applies to a variety of health care providers in addition to physicians. See id. at § 18.130.040 (Supp. 1994).

3. N.C. Gen. Stat. § 90-14(a)(6) (1993).

4. S.D. Codified Laws § 36-4-29 (Supp. 1994). For a definition of chelation therapy and a discussion of statutory law in other states relating to this modality, see supra pp. 19-20.

5. N.Y. Educ. Law § 6527(4)(e) (McKinney Supp. 1995). A previous version of the New York legislation embodied a very detailed approach in authorizing a physician to administer alternative health care treatments. The earlier proposal was analogous to the recently enacted laws in Alaska, Washington, North Carolina, and Oklahoma in limiting the authority of the state medical board to take disciplinary action solely on the ground that a licensee's practice includes an alternative medical treatment. Apart from this similarity, however, the measure departed substantially from these other statutes in its provisions for informed consent and in its formal definition of "alternative medical treatment." Concerning the informed consent of the patient, the bill would have required a physician who uses an alternative medical treatment to obtain the written, informed consent of the patient after having disclosed to the patient that the particular alternative treatment is "alternative." The physician would also have been required to disclose "conventional options" and the reasonable risks and benefits of treatment in a manner that allows the patient to make a knowledgeable evaluation. The New York bill also differed from legislation adopted or proposed in other states by actually defining "alternative medical treatment." This type of treatment was deemed to involve a modality that is not recognized by a specialty board member of the American board of medical specialties, but which is:

  1. (1) a treatment that uses therapeutic agents listed in the United States pharmacopoeia, United States homeopathic pharmacopoeia, or the national formulary; (3) a treatment undertaken in participation with an experimental study approved by the National Institutes of Health (NIH) or by an institutional review board under the authority of the federal Food and Drug Administration (FDA), and conducted under generally accepted protocols for medical research, including outcome based studies. Assembly Bill 5411B, 1993-1994 Reg. Sess.
6. N.Y. Pub. Health § 230(1) (McKinney Supp. 1995).

7. N.Y. Pub. Health § 230(10)(a)(ii) (McKinney Supp. 1995).

8. 1992 N.Y. Laws ch. 735, § 6(a), as amended by Act of July 26, 1994, ch. 558, § 4, 1994 McKinney's Sess. Law News 1313 (West).

9. Okla. Stat. Ann. tit. 59, § 480 (West Supp. 1995).

10. Id. § 492(F).

11. Id. § 493.1(M).

12. Id. § 509.1(D)(2).

13. Id.

14. See id. § 731.3 (1989).

15. Md. Ann. Code art. 41, § 18-305(a) and (c) (1993) and (Supp. 1994). During three legislative sessions from 1991-1993, legislation that endeavored to follow the lead of Alaska and Washington in recognizing the practice rights of physicians who use alternative therapies failed to pass the Maryland General Assembly. The most recent version of this legislation would have prohibited disciplinary action by the state medical board against a physician "solely because the licensee uses a complementary medical method." The proposed limitation on the board's authority would have applied if the physician

  1. (1) documented the patient's informed consent for the use of the complementary medical method in the patient's medical record,
  2. (2) complied with recognized standards of medical practice.
The latter condition seemed ambiguous or inconsistent with the basic intent of the bill, inasmuch as complementary medical methods are generally understood not to conform to "recognized standards of medical practice." H.B. 383, 1993 Reg. Sess.

16. Md. Ann. Code § 18-305(b) (1993).

17. See Commission on Complementary Medical Methods, Minutes of Meeting on August 12, 1994, at 2 (copy on file with author). The virtually identical definition appears in British Medical Association, Complementary Medicine-New Approaches to Good Practice 7-8 (1993).

18. Concerning the previous work of other state entities in this general subject area, see Board of Medical Quality Assurance (California), Proposal for Revision of Section 2052 of the Medical Practice Act (Nov. 1, 1982) and Legislative Research Commission, Alternative Medical Practices Report to the 1993 general Assembly of north Carolina (Jan. 15, 1993).