III. THE "PRACTICE OF MEDICINE" IN HISTORICAL CONTEXT
As Thomas Kuhn suggests, new paradigms do not gain acceptance without revolution, precisely because the debate is conducted in terms supplied by the old paradigm.[284] The old paradigm runs as follows: (1) If you are afflicted, see a licensed physician; (2) because the source of all healing is the licensed physician, any non-physician you might wish to consult is either a fraud, a quack, or both, and in any event, is unlawfully practicing "medicine." The new paradigm, essentially, is this: (1) If afflicted, you may choose from among a menu of healing modalities; (2) healing is not exclusively within the province of the physicians; other healing modalities, not constituting fraud or quackery, can exist alongside medicine.[285]
The old paradigm is physician-oriented and institutionally driven, reflected in statutes that have scarcely changed in the past half-century;[286] the new paradigm is patient-centered[287] and an emerging reality in patient care.[288] To understand the endurance of the existing paradigm, one must examine its historical basis. This section will analyze the extent to which competition among healing professionals underpinned the call for licensing and estab lished the dominance of orthodox medicine.
A. Licensing of Healing Professionals
At common law, the "practice of medicine" was neither defined nor regulated and unlicensed practice was not a crime.[289] In the early nine teenth century, however, physicians sought licensing laws.[290] The public regarded a license as a badge of honor, emphasizing "the importance of `character' rather than the mastery of a formal body of knowledge."[291]
New York was one of the earliest states to license physicians.[292] While the first colonial assembly of the province of New York met in 1683, and, according to T. Romeyn Beck,[293] first recorded legislation between 1691 and 1709,[294] only one provision related to the medical profession: "physi cians and chyrurgeons" were exempt from military duty.[295] In June 1760, the legislature passed an act "to regulate the practice of physick and surgery in the state of New York."[296] The preamble noted:
The act prohibited "practice as a physician or surgeon" in the city of New York without first being "examined . . . approved of and admitted" by certain government officials, "taking to their assistance, for such examination, such persons, as they in their discretion shall think fit."[298] If approved, the candidate received a license to practice "physic or surgery, or both," throughout the province.[299] Any individual found practicing without the license would be fined five pounds.[300]
In 1792, the legislature enacted an updated version, with a preamble, Beck notes, giving "the same melancholy picture of the state of medical practice:"[301]
The statute set a higher standard, essentially requiring that practitioners, in addition to being examined, approved, and admitted by a licensing board, have studied with a "reputable physician" for at least two years if the individual graduated from college, and for three years otherwise.[303]
In 1797, the legislature passed the first act applying to the entire state. The act required an applicant to show evidence of having studied or apprenticed with reputable physicians or surgeons for four years.[304] Beck comments:
In 1806, the legislature passed a law to incorporate medical societies "for the purpose of regulating the practice of Physic and Surgery."[306] In 1807, the statute was amended to regulate the internal organization of the state medical society.[307] Henceforth, these societies would have the power to license the practice of medicine.[308]
The licensing laws were weakly enforced.[309] From 1806 to 1844 (with the exception of seven years), the only penalty for unlicensed practitioners was a prohibition on suing patients for fees.[310] After 1825, the support for open competition advanced by Jacksonian democracy brought the repeal of most state licensing statutes.[311] This lasted for approximately two decades; in the 1870's, most states reenacted their medical practice acts, this time leaving licensing authority in the hands of the legislature.[312]
B. Consolidation of a Medical Establishment
Physician licensing originated in the drive to control lay practitioners[313] and evolved into the consolidation of a medical establishment. Early medical practitioners trained by apprenticeship.[314] They were not highly regarded.[315] A contemporary historian observed: "Few physicians among us are eminent for their skill. Quacks abound like locusts in Egypt."[316] The medical community was characterized by "factiousness."[317] Groups of physicians banded together to promote their own theories and therapies and condemn those of rivals.[318] They formed medical societies to consolidate prestige, power, and economic control over a patient base.[319]
By 1830, nearly every state in the Union had a medical society.[320] Most states acceded to lobbying and delegated licensing authority to the medical societies.[321] Existing medical schools responded by demanding that their graduates be licensed without further examination.[322] Legislatures again acquiesced; the result was a dual system where either the medical society or the medical school could grant a license to practice medicine.[323] As the licenses granted by medical schools gained prestige, candidates flocked to the schools; as a result, between 1840 and 1875, nearly fifty new institutions were established, many of dubious quality.[324] Most were "proprietary schools"privately owned medical institutions, with no affiliation to any university.[325] Graduates relied on bloodletting, purgatives and emetics, and blistering.[326] A contemporary physician remarked: "[W]hoever sends for a physician of this sort expects to be bled, blistered or vomited, or submitted to some other painful or nauseous medication."[327] Physicians who did not follow such "heroic" measures received their colleagues' condemnation. That was the paradigm.[328]
Ultimately, public rebellion against such practices gave rise to alternatives, most notably, Thomsonism, a movement for healing based on botanical preparations.[329] The founder, Samuel Thomson, attacked heroic medicine and advised patients to "depend more upon themselves, and less upon the doctors" by following the preparations indicated in his book.[330] Although Thomson himself distrusted institutionalization, his followers organized local "infirmaries" and founded a Thomsonian society in an attempt to create a professional monopoly.[331] The "regular" physicians, successors to "heroic" medicine, reacted by attempting to discredit Thomsonians and by suing Thomson and others for illegal practice.[332]
Over time, Thomsonism waned, and so-called "eclectic" physicians grew as new rivals to the so-called "regular" physicians.[333] The eclectics drew from Thomsonians, Native American doctors, herb doctors, and others for their medical practice.[334]
The greatest challenge to regular physicians came from homeopathy.[335] Homeopathy, founded by Samuel Hahnemann, a German physician with formal medical training, held that what causes disease in a healthy person will cure the disease in a sick personin other words, like cures like.[336] Hahnemann suggested that the patient be given whatever medicine would induce the same symptoms in a healthy person.[337] He believed extremely small doses were necessary, and formulated a system of radical dilution.[338] Hahnemann referred to regular medicine as "allopathic" because, unlike the "homeopathic" approach, regular medicine used remedies whose action was opposite to the symptoms caused by the illness.[339]
As homeopathy gained supporters in America, the regular physicians (or "allopaths") took steps to "purge" homeopaths from their ranks, including expulsion from medical societies, lawsuits, attacks in the medical literature, and attempts to turn public opinion against homeopathy.[340] Allopaths led a public campaign for improved medical education, scientific rigor, and protection against charlatans; however, economic and social motives underpinned the proclamations.[341] Indeed, the American Medical Associa tion ("AMA") was founded in large part to limit the influence of the homeo paths.[342] A critical part in this crusade was the AMA's first code of ethics, which prohibited regular physicians from consulting with "irregular practitioners."[343]
In response, homeopaths founded their own medical college, the Homeo pathic Medical College of Pennsylvania.[344] However, the AMA continued to seek ways to eliminate homeopaths from the practice of medicine.[345] This included a ban on discussing or reviewing homeopathic works in allopathic periodicals.[346] By the mid-1850's, homeopathic practitioners had been expelled from the medical society of every state except Massachusetts, which eventually succumbed in 1871.[347] In 1881, the AMA convention enacted a resolution prohibiting regular physicians from signing any diploma or certificate to any individual who intended to support and practice "irregular" medicine.[348]
With the elimination of homeopaths as their major competitors, the regular physicians (or allopaths) dominated the healing arts by the end of the nineteenth century.[349] Three additional factors solidified the consolidation of regular physicians into the establishment of a medical orthodoxy. First was the rise of scientific medicine.[350] Pivotal discoveries included the use of anesthesia in surgery (1842)[351] and the introduction of successful methods for disinfection in surgery (1865-1897).[352] Scientific discoveries enabled physicians to systematize diagnosis and to quantify the patient's condition.[353]
Second was the growing power of the AMA as the sole voice of American medicine.[354] In 1900-01, the AMA undertook a major reorganization, with the aim of becoming an institution "whose power to influence public sentiment will be almost unlimited, and whose requests for desirable legislation will everywhere be met with the respect which the politician always has for organized votes . . . ."[355] In 1903, the AMA invited homeo paths to join, provided they renounce their connection with homeopathic institutions and practices.[356]
Third was a report issued by Abraham Flexner of the Carnegie Foundation for the Advancement of Teaching, in conjunction with the AMA Council on Medical Education, in 1910.[357] The "Flexner Report"[359] While the Flexner report stimulated a major reform in medical education,[360] it also institution alized the allopathic bias against the "irregular" physicians.[361] In keeping with the Newtonian/Cartesian model, Flexner urged that medical students be "trained to regard the body as an infinitely complex machine."[362] The Flexner report also created a biomedical establishment where the AMA and medical licensing boards began to act in tandem. For example, in response to Flexner's observation that state licensing boards had the power to eliminate weak medical schools through stricter examination,[363] university medical schools began to collaborate with state licensing boards to improve standards.[364] The AMA Council on Medical Education joined in the collaboration, to the point where state licensing boards came to determine whether to honor a graduate's diploma based on the Council's recommenda tion.[365] The Council established a three-tier rating system for schools;[366] most states denied recognition to institutions designated "Class C;"[367] schools unable to receive AMA approval were forced out of existence.[368] The AMA thus "acquired a whip hand over the whole medical educational system."[369] As a result, between 1904 and 1915, ninety-two schools merged or closed.[370]
The greatest power of the Flexner report was its effect on foundation money: after the report, foundations would support only the AMA-approved schools.[371] For example, in 1913, the Rockefeller General Education Board gave $1.5 million to Johns Hopkins University and $750,000 to Washington University of St. Louis for chairs in pediatrics, surgery, and medicine; in 1921, the total endowment of the Hahnemann Medical College of Philadel phia was $325,000.[372] As a result of economic and social pressures, the three established homeopathic schools in Boston, New York and Philadelphia gradually converted into regular medical schools.[373]
C. Reduction of "Healing" to "Medicine"
While technological innovations increased life expectancy and recovery from disease, the growing reliance on technology and medication radically transformed the experience of care. As control of medical education moved from private practitioners to an academic elite,[374] a system of patient choice yielded to one of physician dominance.[375] The AMA ratified the notion of distance between doctor and patient in its first code of ethics:
The emergence of a "silent world of doctor and patient" signalled the demise of patient self-determination.[377] Indeed, the terminology itself has come to describe the limited role one plays in one's own health care: "passive, open to anything poured into his or her mouth or any other portion of one's anatomy; hence the word patient."[378] The rise of the medical establishment has revolutionized the way individuals "think, eat, sleep, work, play, procreate, even die."[379]
Americans, who suspected medical authority in the nineteenth century, became its devotees in the twentieth century.[380] The culture succumbed to the authority of medicine to define pathology, setting the social definitions of illness and health.[381] This enthroned the physician as arbiter of health, often turning economic, religious, and personal problems into medical ones.[382] The broader notion of healing was reduced to medicine.[383]
Even as methods of diagnosis and treatment improved, they also dehuman ized and mechanized patient care, to the detriment of patient health.[384] While technological methods of diagnosis and treatment provided accuracy, they tended to "move the evidence . . . away from the patient," and to reduce an individualized patient to an organ or body part requiring the use of a particular technology.[385] The attempt to limit uncertainty resulted in further reductionism, distancing physician from patient, perpetuating and masking institutional power, and burying the complexity of illness in a thicket of abstractions.[386]
The reduction of healing to medicine reflects reliance on the Newtonian physics and Cartesian dualism.[387] By separating mind and body and viewing health in terms of human parts, the medical model has overrelied on technology as the harbinger of "healing."[388] The problem is particularly acute in cases of chronic or terminal illness, or in the case of fragile, elderly patients.[389] Moreover, medicine tends to impose a "technological vio lence," when a particular treatmentsuch as chemotherapyeither directly imposes the violence, or "sets the stage for the advent of another [disease], perhaps even more cruel than the death one has just averted."[390] Nor is medicine particularly good at caring humanely for dying patients.[391] By orienting care toward biological preservation and engaging in a systematic denial of death, modern medicine deforms the process of dying, the dying self, and the community of the living.[392]
In many cases, the medical model produces particularly disastrous results.[393] For example, William Styron writes of his struggle with clinical depression:
Styron, with black humor, goes on to describe the way the medical paradigm strips the patient of dignity and flattens the emotional dynamic underlying illness:
Styron's evocative account of his own journey through depression reveals the way in which the Newtonian/Cartesian approach to human suffering left him bereft, even suicidal;[396] even the language used to describe his condition was dehumanizing and sterile.
In Styron's case, the disease seems to have ended of its own accord, independent or perhaps in spite of the various treatments; Styron hypothesizes that his depression signaled an inner process of unfinished mourning for the loss of his mother.[397] Ultimately, Styron turns to subjectivity, to the creative process of the human spirit for understanding and consolation.[398]
Styron's choice suggests the recognition that healing may have a broader context than medicine. In the last fifteen years, there has been renewed interest in homeopathy, among other alternatives.[399] Some medical schools are beginning to introduce courses on alternative healing practices, using the term "complementary medicine."[400] For example, Harvard Medical School and Beth Israel Hospital are offering a continuing education course on chiropractic, acupunctural, homeopathic, herbal, dietary, and vitamin therapies, and mind-body interventions.[401] Lay interest in herbal medicines and folk remedies is increasing, along with scientific investigation of indigenous remedies and medicines.[402] Practitioners and patients are exploring medicinal systems of India, Japan, Korea, and China.[403]
All this suggests a great deal of movement away from medical "ortho doxy"; however, the nineteenth-century attack on sectarians still finds echoes in modern assaults on alternative practitioners.[404] The tendency to equate alternative medicine with fraud and to treat "regular" medicine as occupying the field is echoed by courts upholding convictions of alternative practitio ners,[405] and by decisions such as Rutherford, which evaluate alternatives against a backdrop of known frauds.[406] However, determining whether fraud has occurred requires identifying and applying the elements of fraud. As suggested, this analysis is typically missing in judicial opinions, because courts typically conflate the fraud and scope of practice analyses.[407] Courts are, indeed, heavily invested in the medical model.[408] This, too, arguably reflects the Newtonian/Cartesian paradigm, which underpins the social construction of "orthodox" medicine and "alternative" healing.[409] Section IV will propose a model to disentangle the historical bias toward orthodoxy from the values behind the regulatory system preventing fraud and protecting patients.