Negligence Incompetence and Fraud
“Accepted Standards of Care”
The Physician has but a single task: to cure; and, if s/he succeeds, it matters not a whit by what means s/he has succeeded.
Hippocrates (400 BC)
The Federation of State Medical Boards (www.FSMB.org), in the first few paragraphs of one of their position papers entitled Report of the Special Committee on Questionable and Deceptive Health Care Practices, uses some interesting, descriptive terminology to describe CAM (Complementary and Alternative Medicine), Integrative, Precision, Functional, Naturopathic or Holistic Medicine. Supposedly, any medical practice which does not involve surgery, radiotherapy or pharmacology is considered to be “questionable,” and as “unproven, unsafe, worthless, incompetent, unprofessional, improper, unlawful, fraudulent and felonious.” Of course, the fact that the number three cause of death in the US – prescription drugs – is perfectly fine, never gets mentioned. The FSMB is suggesting that any authentic healing practice from acupuncture to functional medicine, is considered by the organization which sets policy for all the state medical boards, to be “worthless” etc. Is it any wonder that the United States ranks last in quality of healthcare in industrialized nations in spite of spending more per capita than any industrialized nation on healthcare?
The American Medical Association defines seven “Principles of Medical Ethics(1),” one of which states that “A physician shall deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception.” When physicians are suspected or reported to be using “questionable” CAM (Complementary/Alternative Medicine) practices they are often investigated(2), and their colleagues are advised by the FSMB to join the “witch hunt.” After a period of investigation by their State Medical Board, physicians who provide CAM care are then often charged with negligence, incompetence and fraud for having violated certain ill-defined “accepted standards of care.”
Many physicians who provide CAM (3) care (the general term to be used in this paper) are innovators and “out of the box” thinkers who have developed alternatives to invasive surgical, pharmaceutical and radiological procedures (“cut, poison and burn” respectively). They find themselves to be in the same predicament as free thinkers of ages past who faced charges of blasphemy during the Inquisition or more recently, those who faced charges of being a Communist during the McCarthy Era. As in these examples, a CAM physician cannot defend themselves against a charge that is indefinable, because the State-appointed team of investigators, expert witnesses and jury consists mostly or exclusively of conventional medicine physicians or physician extenders, who judge the CAM physician based on their personal definition of what constitutes “accepted standards of care,” which boils down to be defined as anything they want it to be.
Perhaps a consideration of the fundamental and basic definitions of the terms negligence, incompetence and fraud may offer some insight into this complex problem.
neg·li·gent adj. 1 habitually failing to do the required thing; neglectful 2 careless, inattentive, etc. – neg’li·gence n.
in·com·pe·tent adj. without adequate ability, knowledge, fitness, etc. –n. an incompetent person – in·com’pe·tence n.
fraud n. 1 deceit; trickery 2 Law intentional deception 3 a trick 4 an imposter.
Negligence is the core term and the critical phrase in its definition is “the required thing”. The required thing that a CAM physician does is entirely different from “the required thing” that all conventional physicians were trained to do. The required thing of a CAM physician is primarily to cure their patients. CAM physicians attempt to diagnose and treat the root immunological, metabolic, nutritional, allergic, infectious, toxicology and genetic causes within their patients, or by altering such processes in the asymptomatic patient to prevent disease from happening at all.
A conventional physician, although compassionately just as devoted to the healing of their patients, is generally “required” to manage the symptoms of disease, not necessarily address the root causes of disorders and disease. A conventional doctor is “required” to conform to the “accepted standards of care” as defined by their State Medical Board, which primarily boils down to managing the symptoms of diseases and disorders with drugs, surgery or radiation.
The required thing that consumers increasingly want of their physicians is to prevent, cure and heal diseases and disorders, and only manage them with drugs, surgery and radiation as a last resort. Even conventional physicians want more information about CAM(4) . Most physicians, in their heart of hearts, probably want to authentically heal their patients and address the root causes of their patients diseases and disorders, rather than simply palliatively medicate the surface symptoms with drugs. The quote from Hippocrates above suggests that CAM physicians are in far greater compliance than their conventional medicine counterparts with the expectations of the public and with the objectives of a much older, traditional, Hippocratic version of the term accepted standards of care.
From the perspective of a CAM physician, the conventional physician is negligent because they fail to do the required thing and emphasize the prevention and the treatment of the root causes of diseases and disorders in the care of their patients. From the perspective of a conventional physician, the CAM physician is negligent because they fail to emphasize the management of the symptoms of diseases and disorders (with drugs and surgery) in the care of their patients. Each group is violating the accepted standards of care of the other.
As CAM physicians become increasingly proficient in the prevention and treatment of root immunological, metabolic, nutritional, allergic, infectious, toxicological and genetic causes of disorders and diseases, the management of symptoms with drugs and surgery becomes increasingly obsolete and irrelevant. As an increasing proportion of their medical practices are devoted to CAM therapies, less of their knowledge and skills are devoted to the latest nuances of conventional medicine. Thus CAM physicians often appear to be out of touch with the latest drug therapies and to be incompetent to conventional physicians. Likewise, most conventional physicians were never trained in CAM and as CAM physicians become ever more convinced that CAM works (because it does), conventional physicians appear to be increasingly out of touch and incompetent. As with the issue of negligence, each appears incompetent to the other.
Likewise each group appears to be fraudulent to the other. Conventional physicians believe that prevention, cure and healing is impossible for most of their patients, a true statement if their patient’s treatments are indeed largely limited to only the management of symptoms with drugs, surgery and radiation. CAM physicians have a completely different view, stemming from years of observing one “incurable” patient after another becoming well. Conventional physicians often dismiss the CAM physician’s claims of efficacy as fraudulent because such interventions, often involving a dozen or more different therapies applied simultaneously and prescribed in different combinations for different patients with the same diagnosis, are not “proven” by controlled studies. In fact, CAM therapies are difficult to “prove” unless one is willing to acknowledge the validity of each patient’s cure by itself to be proof that each unique treatment tailored to the exact, personalized needs of that patient actually worked.
CAM physicians counter that conventional physicians are fraudulent, because disease management with surgery, radiation and drugs is often misrepresented as the only acceptable treatment and conventional medicine treatments are often misrepresented as preventative, curative and healing interventions. As an example, mammography is often mislabeled as preventative when in fact it does not prevent cancer – mammography is an early detection technology to find disease that is already present. Except under limited circumstances, such as antibiotic treatment for infectious diseases, drugs, surgery and radiation generally do not prevent, heal or cure disease or disorders. On the contrary, conventional medicine disease management strategies employing drugs, surgery and radiation often interfere with healing and in fact drug therapies are at least the 3rd leading cause of death in the US.(5)
Furthermore, the only thing that is proven on planet Earth is formal mathematical logic. In fact, the Pythagorean Theorem (https://en.wikipedia.org/wiki/Pythagorean_theorem) has many proofs, all very logical and irrefutable. Nothing in medicine is “proven” because the variations in the metabolic and genetic status of patients disallow a 100% cure. Some treatments are “very suggestive” or “not suggestive” of being effective.
Conventional physicians often believe that CAM physicians are guilty of negligence, incompetence and fraud. CAM physicians often believe that conventional physicians are guilty of negligence, incompetence and fraud. There can be no compromise as long as each side judges the other based on different versions of the term “accepted standards of care.” Since the AMA mandates that “A physician shall ….. strive to expose those physicians deficient in character or competence, or who engage in fraud or deception,”(6) should CAM physicians be ethically compelled to expose all conventional physicians and vice versa? Both sides need to expand their definitions of such standards to include the other’s.
If State Medical Boards only apply conventional medicine’s accepted standards of care (management of disease symptoms – their version of the required thing) to judge and prosecute CAM physicians and fail to realize that CAM physicians are practicing by a completely different, potentially curative, preventative, Hippocratic-based standard of care, State Medical Boards will continue to blindly wage their illegitimate war against CAM physicians. The chilling effects over the decades of such prosecutions on conventional physicians, who might otherwise have expanded their repertoires by now to learn and apply safer, science-based, cost-effective and often more efficacious CAM therapies, may be the single greatest impediment to authentic medical innovation and to a genuine solution to the current health care crisis. The narrow definitions of “accepted standards of care,” negligence, incompetence and fraud used by the Federation of State Medical Boards must be redefined so that the potentially curative and preventative CAM therapies can be introduced into mainstream medicine.
(1) See “Code of Medical Ethics” published by the American Medical Association (1998), p. xiv, item no. II.
(2) See “The War Against Alternative Medicine: How mainstream Medicine is Trying to Destroy Complementary and Alternative Medicine” by Lydia Bronte PhD. The Federation of State Medical Boards approved an eleven-point proposal of its Special Committee on Health Care Fraud in 1997, an attack plan against doctors who use “questionable” alternative medical practices.
(3) Non-conventional care used here would be any practice other than cutting (surgery), burning (radiotherapy) or poisoning (drug therapies), which captures the spirit of the FSMB article discussed above. The National Center for Complementary and Alternative Medicine (NCCAM) recognizes five main categories of complementary and alternative medicine, which would be considered to be “unproven, unsafe, worthless, incompetent, unprofessional, improper, unlawful, fraudulent and felonious:”
• Mind-body medicine. Mind-body medicine includes treatments that focus on how our mental and emotional status interacts and affects the body’s ability to function. Examples include meditation and various therapies expressed through art and music.
• Whole medical systems. This category refers to complete systems of medical theory and practice, many of which go back thousands of years and have roots in non-Western cultures. Examples include traditional Chinese medicine and Ayurveda, a therapy that originated in India. Whole medical systems from the West include homeopathy and naturopathy.
• Manipulative and body-based practices. Relying on the physical manipulation of the body, this practice is intended to improve specific symptoms and overall health. Examples of these practices include chiropractic and osteopathy.
• Energy medicine. This form of alternative medicine uses energy fields to promote healing. Biofield therapies affect energy fields that are said to encircle the human body — forms include Reiki and qi gong. Bioelectromagnetic-based therapies, such as magnet therapy, involve the manipulation of electromagnetic fields.
• Biologically based practices. Since the focus is on herbs, nutrition, and vitamins, dietary supplements and herbal medicine are perhaps the most common forms of biologically based complementary and alternative medicine. A growing interest in these kinds of therapies is leading to more research, but many of these biologically based practices have yet to be thoroughly tested.
(4) Corbin Winslow L, Shapiro H. Physicians want education about complementary and alternative medicine to enhance communication with their patients. Arch Intern Med 2002 May 27;162(10):1176-81, Center for Integrative Medicine, University of Colorado Hospital, PO Box 6510, Mail Stop F730, Aurora, CO 80045, USA. firstname.lastname@example.org
(5) JAMA (Journal of the American Medical Association), July 26, 2000-Vol 284, No. 4, pp. 483-485. This article also ranked the US Healthcare System almost in last place, based on morbidity and mortality statistics, compared to many leading Western nations.
(6) See “Code of Medical Ethics” published by the American Medical Association (1998), p. xiv, item no. II.