The Alternative Medical Practice Act: Does It Adequately Protect the Right of Physicians to Use Complementary and Alternative Medicine?
Barrette, Joseph A., St. John's Law Review
The early 1990s witnessed an explosion of the American consumer's interest in complementary and alternative medicine (CAM).1 In 1993, a survey published in the New England Journal of Medicine (NEJM) sparked the attention of the entire healthcare industry with a finding that more Americans consulted CAM providers than conventional physicians.2 According to the survey, consumers paid $10.3 billion in out-of-pocket expenses to CAM providers representing a large share of the $23.5 billion paid in out-of-pocket expenses for all physicians' services in the United States.3 A follow-up survey conducted in 1997 indicated "dramatic increases in use and expenditures associated with alternative medical care."4 Researchers have estimated that consumer spending on CAM will grow by as much as thirty percent annually.5 Health maintenance organizations (HMOs) and the broader insurance industry have also recognized this consumer demand for alternative health care along with its concomitant monetary expenditures. Kaiser Permonte, the largest HMO, Oxford Health Plans, Western Life, Mutual of Omaha, and Blue Cross Blue Shield now offer some level of reimbursement for alternative therapies.6
In 1992, under the auspices of the National Institutes of Health,7 Congress authorized the establishment of what is now called the National Center for Complementary and Alternative Medicine (NCCAM)8 The primary purpose of NCCAM is "to facilitate the evaluation of alternative medical treatment modalities."9 From an initial budget of $3.5 million, congressional appropriations for the 2000 fiscal year have increased to $68.4 million.10
Despite the tumultuous relationship between conventional medicine and CAM,11 the medical community has begun to seriously examine CAM and to incorporate it into mainstream healthcare. "The American Medical Association (AMA) has recognized the need for medical schools to respond to the growing interest in alternative health care practices."12 Approximately sixty percent of United States' medical schools now offer courses in complementary or alternative medicine.13 Research has shown that eighty percent of medical students and seventy percent of family physicians wish to receive training in CAM therapies,14 and nearly sixty percent of conventional physicians have either made referrals or are willing to refer their patients to CAM practitioners.15 Further, the Group on Educational Affairs of the Association of American Medical Colleges, the Society of Teachers of Family Medicine, and the American Public Health Association have formed CAM special interest groups.16
The overwhelming consumer interest in CAM and conventional medicine's courtship of CAM presents many challenges for physicians who have integrated or may in the future integrate CAM, in whole or in part, into their medical practice. Not surprisingly, courts, state legislators, and administrative bodies have been increasingly involved in defining the legal parameters of CAM. The differing views underlying organized medicine and unorthodox healthcare practice have led to a dilemma for legal decision makers.17 This professional rivalry has historically led courts, legislators, and administrative bodies to examine CAM practices through the perspective of conventional medicine.18 "The legal paradigm to date thus mirrors biomedicine's historical view of holistic practice as deviant, suspect, or 'on the fringe.' "19 At the core of the lingering rivalry is conventional medicine's view that CAM's efficacy remains largely unproven.20
Despite the heated debate of the efficacy of CAM therapies, physicians have integrated CAM therapies into their practices either by performing the therapy themselves or by referring their patients to a CAM practitioner. Malpractice liability and exposure to disciplinary action for unprofessional conduct have concerned these physicians, as well as those who are contemplating the integration of CAM therapies into their practice. …