A. State Regulation of Medicine
The regulatory system fairly reflects the dominant paradigm in its licensing scheme for health professionals. States are empowered, under their police power,[114] to prescribe the qualifications of who may practice medicine.[115] This includes the power to establish licensing boards that admit or exclude persons from the medical profession.[116] The justification for such regula tion is to prevent indiscriminate conduct by "unskilled and unlicensed practitioners" of the healing arts[117] and to protect the public from "the menace of the ignorant, the unprepared, the quacks and the fakers."[118]
No universal definition of the "practice of medicine" exists; each state has its own version. All state statutes, however, include some combination of the following: (1) diagnosing, preventing, treating, and curing disease; (2) holding oneself out to the public as able to perform the above; (3) intending to receive a gift, fee, or compensation for the above; (4) attaching such titles as "M.D." to one's name; (5) maintaining an office for reception, examina tion, and treatment; (6) performing surgery; and (7) using, administering, or prescribing drugs or medicinal preparations.[119] The sections below briefly describe some of the permutations.
1. Diagnosis, Treatment, Prevention, Cure
All states define the "practice of medicine," in part, by using such words as "diagnosis," "treatment," "prevention," "cure," "advise" and "pre scribe."[120] These words are usually used in conjunction with "disease," "injury," "deformity" and "mental or physical condition." For example, New York defines the "practice of medicine" as "diagnosing, treating, operating, or prescribing for any human disease, pain, injury, deformity or physical condition."[121] Similarly, Michigan includes "diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means."[122] The definitions tend to be broad in the extreme. For example, reading Michigan's statute literally, "relieving . . . a . . . complaint . . . by . . . advice" constitutes practicing medicine.[123] Simi larly, under the Arkansas statute, "suggesting . . . any form of . . . healing for the intended palliation" constitutes the "practice of medicine."[124]
2. Holding Oneself Out to the Public
Most states also include "holding oneself out to the public as a medical practitioner" in defining the "practice of medicine."[125] Some states de scribe this as "publicly professing" to assume duties incident to the practice of medicine, such as diagnosing, healing, and treating[126] or "publicly professing" to be a physician or surgeon.[127] Other states, such as Ha waii,[128] Minnesota,[129] New Mexico,[130] Oregon, [131] Vermont,[132] and Wyoming,[133] also include "advertising" that one is a physician or otherwise authorized to practice medicine in the state.
In Florida,[134] New York,[135] and North Carolina, [136] the courts, and not the legislatures, have included holding oneself out as a physician in the definition of "practicing medicine." In Louisiana, an appellate court has held that "practice of medicine" does not mean actually diagnosing and treating diseases, but rather, holding one's self out to the public as being engaged in the business of diagnosis and treatment.[137] By finding that "holding one's self out to the public" can suffice as "practicing medicine," irrespective of actual diagnosis or treatment, legislatures and courts have further broadened the definition's sweep.
3. Intending to Receive a Fee, Gift, or Compensation
A number of states define the "practice of medicine" as diagnosing and treating "with the intention of receiving compensation, or a fee or gift."[138] In some of these states, the courts have incorporated the requirement of a fee within the definition of the "practice of medicine."[139] By way of compari son, the Hawaii, Louisiana and Utah statutes specifically state that one can be held to practice medicine irrespective of compensation.[140]
In about half the states, attaching to one's name one or more of the following constitutes the "practice of medicine:" "doctor," "doctor of medicine," "doctor of osteopathy," "physician," "surgeon," "physician and surgeon," "Dr.," "M.D.," "D.O.," or other words or abbreviations to indicate or induce others to believe that one is licensed to practice medicine and engaged in the duties characteristic of the "practice of medicine."[141]
The Delaware statute also includes using the word "healer" in connection with one's name.[142] In Nebraska, Christian Science healing has been held to constitute the "practice of medicine."[143] Ohio, Oklahoma, and Vermont include using the word "Professor" in connection with the person's name.[144] In Maine and Ohio, the use of certain words or letters is prima facie evidence of intent to represent one's self as engaged in the "practice of medicine or surgery."[145] For example, one is guilty of practicing medicine without a license if one uses "M.D." in a manner that induces a belief that the individual is engaged in medical practice; the prosecution is not required to make a further showing that the defendant has, in fact, treated patients.[146]
In many states, maintaining an office to receive, examine and treat patients constitutes practicing medicine.[147] In Indiana, maintaining a "place of business for the reception . . . of persons suffering from . . . conditions of the body or mind" suffices.[148] Tattooing solely for artistic purposes has been held to constitute medical practice.[149] In Texas, maintaining an office to treat people was held to constitute the practice of medicine, whether or not defendant claimed to be a physician or medical practitioner.[150] In Utah, maintaining an office or place of business for the purpose of attempting to "diagnose, treat, correct, advise . . . for any human . . . condition . . . real or imaginary" constitutes practicing medicine.[151]
Approximately half of the states include performing surgery or operation in the definition of practicing medicine.[152] Four use phrases such as "sever or penetrate the tissues of human beings."[153] Although Massachusetts does not include surgery or operation in its statute, the Supreme Judicial Court has held that the "practice of medicine in any of its branches" includes surgery and setting fractured bones.[154] Of the various statutory definitions, per forming surgery is perhaps the narrowest and most tailored to prohibiting untrained medical practitioners.
7. Using, Administering or Prescribing Drugs
More than half the states include the use, administration or prescription of drugs or medicine in the "practice of medicine."[155] However, only a few actually define "drug";[156] these adopt a broad definition. For example, Indiana defines "drug or medicine" as:
The North Carolina Supreme Court has defined "drug" as "any substance used as a medicine or in composition of medicines for internal or external use" and has defined "medicine" as "any substance or preparation used in treating disease."[158] New Mexico's statute includes not only prescribing any drug or medicine, but also "offering or undertaking to give or administer any dangerous drug or medicine for the use of any other person, except as directed by a licensed physician."[159]
8. Miscellaneous Definitional Provisions
Maryland includes ending a human pregnancy in its definition of the "practice of medicine."[160] Delaware's statute[161] and New York's case law include diagnosing of diseases of any person, including dead persons.[162] Treatments such as manipulation expressly constitute the "practice of medicine" in Arkansas,[163] Maine,[164] and South Carolina.[165] In Ha waii, the "practice of medicine" includes "hypnotism," as well as "the use of . . . any means or method . . . either tangible or intangible."[166] Again, the statutes are drafted broadly to reflect the presumption that medicine occupies the field of healing.
B. Regulation of Other Health Professionals
In contrast to broad "practice of medicine" statutes, statutes defining allied health professionals are defined narrowly, with express prohibitions against "practicing medicine."[167] Allied health professionals fall into three groups:
While physicians have unlimited authority to "diagnose" and "treat," allied health professionals have a limited range of activity, and in many cases, can practice only under physician supervision. For example, in California, the "practice of midwifery" is defined as the "furthering or . . . undertaking by any licensed midwife, under the supervision of a licensed physician and surgeon who has current practice or training in obstetrics, to assist a woman in childbirth so long as progress meets criteria accepted as normal."[168] Midwives are licensed to "attend cases of normal childbirth and to provide prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn," all under the "supervi sion of a licensed physician and surgeon."[169] The statute requires mid wives to refer any complications to a physician immediately and prohibits assisting childbirth by "any artificial, forcible, or mechanical means."[170] Further, "[a] midwife is not authorized to practice medicine and sur gery."[171] Thus, the statute both limits the practice of midwifery and makes midwives dependent on, and subordinate to, physicians.
The findings in section 1 of the Licensed Midwifery Practice Act of 1993 provide an epidemiological justification for licensing midwifery that may provide some parallels for licensing alternative practitioners. These include the observation that "[o]ver 40,000 babies die every year in the United States, many 108q. . . as a result of being born severely underweight"; that this is a "preventable tragedy and a national disgrace"; that each woman has a "fundamental right to receive proper prenatal care," and to play a "central role" in such care, and that "social, emotional, and psychological factors are decisive" in such care; that low-income pregnant women face a shortage of physicians and surgeons; that in "[f]ive nations with the lowest prenatal mortality rates," midwives attend seventy percent of all births; and that non-nurse midwifery provides comprehensive, cost-effective "perinatal care that lowers perinatal morbidity and mortality rates."[172] The findings do not speak of "fraud," or of the potential consequences of patient susceptibility to unscrupulous practitioners, but rather emphasize the patient's right to receive proper care, the emotional and psychological components of such care, and the unavailability of physicians and surgeons to provide such care.[173] The findings make no demand for proof of therapeutic efficacy but instead observe that cultures using midwives have reduced prenatal mortality rates.
C. Limitations on the Regulation of Medicine
Courts have justified extensive government regulation in the area of medical health as a proper exercise of the states' police power,[174] admitting few constitutional limitations in the name of patient choice. Thus, although the courts have found constitutional protection for such quasi-medical matters as contraception,[175] abortion,[176] and the right to be disconnected from artificial life support,[177] they have shown little enthusiasm for either a constitutional or common-law right to select the treatment of choice.
The courts generally have found individual religious objections insufficient to override the governmental interest in protecting public health. For example, the United States Supreme Court has held that the government may require vaccination, even if this violates an individual's religious beliefs.[178] Similarly, courts have found compulsory vaccination constitutional as a precondition to attendance at public school.[179] Courts have held that the state may mandate medical treatment even if this violates the religious beliefs of the child or parent.[180]
Courts generally have found limited Fourteenth Amendment due process restrictions on government regulation of medical practice. The United States Supreme Court addressed due process restrictions in Cruzan v. Director, Missouri Department of Public Health.[181] Nancy Cruzan was in a persis tent vegetative state after being severely injured in an automobile acci dent.[182] Her parents, the plaintiffs, sought a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment.[183] The Supreme Court of Missouri held that the parents lacked authority to terminate treatment, in the absence of clear and convincing evidence that Cruzan wished to have the life-sustaining treatment withdrawn.[184] The United States Supreme Court affirmed.[185]
The court noted that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment, including lifesaving hydration and nutrition.[186] An incompetent person, however, is unable to make an "informed and voluntary choice"; the choice must be made by a surrogate.[187] The state may assert its interest in preserving life, weighed against the individual's constitutionally protected interests, by adopting a "clear and convincing" standard of proof to govern judicial proceedings determining the incompetent patient's choice.[188] Thus, the court held, Missouri's statute satisfied constitutional standards.[189]
In addition to the right to refuse medical treatment, courts have found that, in some circumstances, patients have a constitutional right to treatment. For example, the Middle District of Alabama held that where a non-dangerous patient is involuntarily civilly committed to a state mental hospital, the patient has a constitutional right to "such . . . treatment as will [help him] to be cured or to improve his . . . mental condition."[190] Similarly, the Fifth Circuit held "that a person involuntarily . . . committed to a state mental hospital has a constitutional right to receive such individual treatment as will give him a reasonable opportunity to be cured or to improve his mental condition."[191] However, these cases address the right to receive treatment, not to a choice among treatments, and do not establish a Due Process right to select the treatment of choice.
Where plaintiffs have challenged government regulation of medical practice as violating a constitutional right to privacy, courts have tended to defend the regulatory process. Courts typically reject the argument that the right to privacy grants patients the right to select, over the objections of physicians or a regulatory authority, a particular mode of treatment.
a. United States v. Rutherford
In United States v. Rutherford, a group of terminally ill cancer patients sued to enjoin the federal government from interfering with interstate transportation of laetrile, a drug not approved as "safe and effective" under the Federal Food, Drug and Cosmetic Act (the "Act").[192] The district court held that by denying cancer patients the right to use a non-toxic substance for their personal health, the Food and Drug Administration ("FDA") Commis-sioner infringed on the patients' constitutionally protected privacy inter ests.[193]
The Tenth Circuit, bypassing the constitutional issue, held that the "safe and effective" requirement did not apply to terminally ill cancer patients, who would "die of cancer regardless . . . ."[194] The court held that laetrile could be provided to cancer patients certified as terminally ill, but only by intravenous injection under a doctor's supervision.[195] In addition, the court directed the FDA to promulgate regulations "as if" the drug had been found "safe and effective."[196]
The Supreme Court reversed and remanded, observing that the Act makes "no special provision" for terminally ill patients.[197] On the contrary, according to the Court, the legislative history to the 1938 Act indicated Congressional concern that "individuals with fatal illnesses, such as cancer, should be shielded from fraudulent cures."[198] The Court found similar concerns reflected in the passage of the 1962 amendments and expressed by the FDA in its implementation of the Act.[199] The Court expressly indicated its reluctance to displace a "longstanding administrative policy that comports with the plain language, history, and prophylactic purpose of the Act."[200]
The Court rejected the district court's notion that the statutory standards could have "no reasonable application to terminally ill patients."[201] It swept away the constitutional privacy argument with the brush of federalism:
Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy.[202]
The Court concluded that Congress reasonably could have intended to "shield terminal patients from ineffective or unsafe drugs" such as laetrile.[203]
On remand, the Tenth Circuit addressed the constitutional issue, namely, whether the FDA had infringed upon plaintiffs' privacy interests by denying them access to laetrile.[204] The court held that a patient's decision to have treatment or not is a constitutionally protected right, but that the patient's "selection of a particular treatment, or at least a medication, is within the area of governmental interest in protecting public health."[205] The court found that the "premarketing requirement of the . . . Act was a [valid] exercise of Congressional authority to limit the patient's choice of medication."[206] Thus, Rutherford suggests that patients do not have a constitutional privacy right to select a treatment of choice over the objections of a governmental authority such as the FDA.[207]
In Andrews v. Ballard, a group of patients challenged rules established by the Texas Board of Medical Examiners proclaiming acupuncture to be the "practice of medicine."[208] Plaintiffs argued that the "rules effectively eliminate[d] the practice of acupuncture in Texas, thereby depriving them" of the constitutional right to obtain acupuncture treatment.[209]
The district court agreed that plaintiffs had a "constitutional right, encom passed by the right of privacy, to . . . obtain acupuncture treatment," and held that "the challenged rules [that] effectively deprive[d] them of that right . . . were not necessary to serve the state's interest in protecting [the] patients' health," and were unconstitutional.[210] The court described the right to privacy as an expression of "the sanctity of individual free choice and self-determination as fundamental constituents of life."[211] The court found in prior Supreme Court privacy cases two criteria marking decisions protected by the constitutional right to privacy: first, they must be "personal decisions," and second, they must "profoundly affect one's development or one's life."[212] Medical decisions, like decisions relating to "`marriage, procre ation, contraception, family relationships, and child rearing and education,'" are "to an extraordinary degree, intrinsically personal."[213] Medical deci sions can "produce or eliminate physical, psychological, and emotional ruin, . . . destroy one's economic stability," determine whether one will experience a "life of pain or pleasure," and for some, make the "difference between life and death."[214] This includes the decision to obtain acupuncture.[215]
The court noted that many individuals, including one of the plaintiffs, seek acupuncture only when Western medicine fails them.[216] Acupuncture is their "last hope;" denying them the treatment may mean condemning them to "endure without hope the misery that is [there]."[217] The court criticized the Tenth's Circuit's distinction in Rutherford between refusing or choosing treatment, and selecting the kind of treatment, since as with laetrile, denying patients the right to select a particular treatment may be equivalent to denying them the right to be treated.[218] Thus, the court found, the decision to obtain acupuncture is protected by the constitutional right to privacy.[219] The court next asked whether the challenged rules effectively violated the right of privacy by significantly interfering with the decision in question.[220] If not, the rules needed only be "`rationally related' to a `constitutionally permissible' purpose"; if so, the rules had to be "`narrowly drawn'" to serve a "`compelling interest.'"[221] The court found that since the rules did impose a significant burden on the decision to obtain acupuncture treat ment,[222] it had to determine whether the rules were narrowly drawn to serve a compelling interest.
The state interest at issue, protecting patients' health, arguably was "compelling."[223] However, the court found that the rules were not "nar rowly drawn" to serve this interest.[224] The rules' restriction of practicing acupuncture to licensed physicians was based on a finding that acupuncture is an "experimental procedure, the safety [and effectiveness] of which have not been established."[225] According to the court, this finding was adopted by a board of medical examiners that lacked expertise in, and did not hear testimony or receive evidence from, experts concerning acupuncture.[226] Moreover,
Even if acupuncture were an experimental procedure of unproven safety and effectiveness, however, the court found that the challenged rules were not narrowly drawn to protect patients from any associated dangers.[228] Defendants cited three dangers from permitting nonphysicians to practice acupuncture: misdiagnosis, improper administration of acupuncture, and delayed remedy of complications arising during the acupuncture treatment.[229] In response, the court observed that the danger of misdiagnosis could be remedied by requiring that patients consult with physicians prior to obtaining acupuncture treatment; that the danger of improper placement of needles was not remedied by restricting the practice of acupuncture to those least schooled in the art, namely, physicians; and that the danger of delayed treatment of complications could have been remedied through less drastic means, such as requiring acupuncturists to take courses in emergency medical treatment, or requiring that acupuncturists have ready access to a physi cian.[230]
The court noted that it was not striking the challenged provisions because they were "unwise, improvident, or out of harmony with a particular school of thought," but because they were unconstitutional.[231] Finally, the court suggested a variety of constitutional alternatives: the legislature could grant acupuncturists full independent status; it could allow independent practice but require diagnosis by or referral from physicians; it could establish minimum standards of skill and knowledge for practitioners; or, if feasible, it could require acupuncturists to practice under the supervision and control of physicians.[232]
The Fifth Circuit's approach in Andrews has not been universally fol lowed.[233] For example, in New York State Ophthalmological Society v. Bowen, ophthalmologists, their patients, and professional associations brought a class action challenging the constitutionality of a provision of COBRA (the Consolidated Omnibus Budget Reconciliation Act of 1985) which prohibited Medicare billing for an assistant cataract surgeon, unless pre-approved by an insurance carrier or designated state Peer Review Organization.[234] The D.C. Circuit rejected the notion that the "constitutional right to privacy . . . protects all choices made by patients and their physicians or subjects to `strict scrutiny' all government interference with [their] choice of treatment."[235] The court noted the difficulty in determining what kinds of medical decisions should be accorded "the same high degree of solicitude now reserved for first trimester abortions."[236] The court stated that it did not rule out the possi-bility that a particular medical decision, such as a choice regarding eyesight, might be entitled to constitutional protection.[237] In such a case, however, the plaintiff would need to show "medical necessity," and the "unavailability of equally effective alternative therapy."[238]
Judge Williams, concurring, observed that the sole interest advanced in favor of the statutory provision restricting individuals' ability to have a second surgeon present in a cataract operation, was to prevent individuals from "being harmed by making unwise expenditures of their own money . . . ."[239] "Thus, the asserted state interest [was] not only paternalistic," but also was limited to protecting the pocketbook of the supposed beneficiaries.[240] Judge Williams criticized the majority's requirement of "medical necessity" as infringing on the patient's autonomy interest.[241] While agreeing that such an interest might not rise to the level of constitutional protection, Judge Williams argued that the patient should not be prohibited from investing in a health measure merely because of differing views on its incremental value.[242]
4. Limitations Based on "Informed Consent"
Justice Cardozo first expressed the doctrine of informed consent in Schloendorff v. Society of New York Hospital: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . ."[243] The doctrine protects the patient's "bodily inte-grity,"[244] by requiring the physician to disclose all information material to the patient's decision to submit to a particular medical procedure.[245]
Informed consent provides a non-constitutional, common-law basis for the right to refuse treatment.[246] While informed consent does advance patient autonomy,[247] the doctrine does not satisfactorily protect the patient's freedom of choice.[248] For example, most states require the kind of disclo sure a reasonable medical practitioner would make under the circum-stances.[249] Although some courts and legislatures require disclosure of alternative treatments,[250] "alternative" in this context means "feasible and available" conventional medical treatments.[251] Thus, for example, a physician would not be required to disclose the possibility of treating a migraine headache through hypnotherapy, acupuncture, or touch healing, or a combination of the three, rather than through a prescription drug.[252] Similarly, a physician might not be required to disclose the possibility of a myomectomy, an operation in which the fibroid tumor is removed while the ability to have children is preserved.[253]
Moreover, the informed consent doctrine inadequately protects patient autonomy in at least three additional respects: first, it often does not protect the patient from non-disclosures in cases that do not involve physical contact;[254] second, courts often use informed consent to protect physical well-being, but not patient choice;[255] and finally, under the informed consent doctrine, certain outcomes are not recognized as injuries.[256] Thus, as presently developed by the courts, informed consent provides an inadequate basis for the recognition of a right to choice of treatment.
5. Limitations Based on Assumption of Risk
Assumption of risk, by recognizing the patient's responsibility for some treatment choices, and by protecting the physician whose patient chooses alternatives, could expand the right to alternative treatment choices. For example, in Schneider v. Revici, a patient, after learning that a lump was found in her breast, refused a biopsy and instead consulted a physician for unconventional treatment; when the treatment failed to succeed, and in fact resulted in an increase in the size of the tumor, the patient sued.[257] Because the patient had signed a consent form assuming the risk of injury for the unconventional treatment, the court held that the jury could consider assumption of risk as a total bar to recovery:
[W]e see no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment . . . . [W]e believe that an informed decision to avoid surgery and conventional chemotherapy is within the patient's right "to determine what shall be done with his own body."[258]
Similarly, in Shorter v. Drury, the patient, a Jehovah's Witness, bled to death after refusing a blood transfusion when a medical procedure perforated her uterus.[259] Shorter had signed a document releasing the hospital "from any responsibility whatever for unfavorable reactions or any untoward results due to my refusal to permit the use of blood or its derivatives."[260] The jury found the physician negligent, but reduced damages by seventy-five percent based on Shorter's assumption of the risk that she would die from bleed ing.[261] The court upheld the release, since the form did not exculpate the physician from his own negligence, but only from risks created by the patient's refusal to accept blood transfusions.[262] Both Schneider and Shorter frame the patient's decision to pursue unconventional treatment in terms of assumption of risk, shifting the focus from physician decision-making to patient choice.[263] Thus, assumption of risk may provide a basis for the patient's right to select unconventional treatment modalities, even over the objections of the physician or of prevailing medical norms.
D. Prosecution of Alternative Healers
Just as courts have limited constitutional and common-law support for a right to choose treatment, so they have affirmed convictions of healers for unlawfully practicing medicine. For example, in an early case, Smith v. People, a defendant who purported to cure diseases by laying on hands was convicted for "practicing medicine" without a license, even though he did not tell patients what was the matter with them, practiced out of a couple of living rooms, and used only his hands to employ a "gift from the Almighty."[264]
The court rejected defendant's claim that he was engaged in the free exercise of religion under the First Amendment and was thus within the statutory exemption for practicing "religious tenets."[265] The court stated that the First Amendment did not "authorize one under the cover of religion or a religious exercise to go into healing commercially for hire."[266] It noted that defendant used the title "Healer" to indicate that he was engaged in the business of treating the sick.[267] The court further emphasized that a public health statute must be construed liberally:
The Smith court read the "practice of medicine" to mean "the practice of the healing art commercially, regardless of the curative agency employed."[269] Expressing a technocratic orientation characteristic of the twentieth century and the medical paradigm,[270] the court's reading is somewhat overbroad, given the licensed dieticians, psychologists, social workers, physical/massage therapists, acupuncturists, chiropractors, other health professionals,[271] and even health food store proprietors, who do, in some fashion, diagnose and treat disease without the training of licensed physicians. Nonetheless, Smith is typical of decisions throughout the century in other jurisdictions.[272]
Judicial antipathy to alternative practitioners is reflected in cases such as People v. Amber, in which defendant, who practiced acupuncture, was indicted for the unlicensed "practice of medicine."[273] In Amber, defendant argued that the statutory prohibition on the unlicensed "practice of medicine" referred to "Western allopathic medicine" and did not encompass systems such as Chinese acupuncture, which differs in its "philosophy, practice and technique."[274] The court disagreed, holding that diagnosis constitutes any "`sizing up' or a comprehending of the physical or mental status of a patient."[275] In sweeping language, the court asserted:
The court emphasized that the "patient seeks treatment, not out of curiosity but only because he is suffering pain . . . [and] can expect the anticipated relief from the [healing methodology]."[277] Thus, even determining "the existence of a disharmony brought about by the disequilibrium of Yin and Yang" constituted a "diagnosis" under the statute.[278] Such a determination required expertise, specifically, "to palpate the twelve pulses in order to read the condition of the twelve organs and thus determine which of the twelve meridians must be used . . . [to restore] the vital essence of `ch'i'" or vital energy.[279] The court also noted that a practitioner need not use any particular language or mention a specific disease to make a "diagnosis" under the statute.[280] Thus, the court denied defendant's motion to dismiss the indictment.[281]
The court's decision in Amber is marked by its breadth and scope, affirming the medical profession's monopoly over health care, and asserting that any healing modality, present or future, must come within the ambit of "medicine."[282] By defining "diagnosis" as any "sizing up" of a client's condition, including the relative balance of yin and yang, the court sweeps even the most general assessments of health under the statute's rubric.[283] Thus, judicial opinions treating alternative practitioners reflect a paradigm of physician dominance.