Your Right to Know: A Needle Is a Needle?

By Michael A. Taromina, Esq.

The diversity of state laws governing the practice of traditional Chinese medicine (TCM), as they currently exist, can be categorized in the following four ways:

1. Medical Free. This ideal legal setting allows TCM providers to lawfully treat patients independent of Western medicine. Both medicines may cooperate, but each medicine maintains its own independent standing in these TCM-friendly jurisdictions. This model enables TCM practitioners to treat a patient first and exclusively. It is important to point out that, as possible exclusive healthcare providers, TCM practitioners assume the highest degree of risk and liability within these jurisdictions. Freedom, of course, always comes with responsibilities.
2. Medical Recommended. These jurisdictions require TCM providers to formally "recommend"� licensed physicians prior to treatment. The recommendation must be in writing, signed by both patient and practitioner. Interestingly, no particular physician must be named or recommended. The failure to recommend or, more specifically, the failure to maintain written proof of said recommendation, would be cause for professional discipline or proof of malpractice regardless of the outcome of a patient's TCM treatment. To summarize, without producible proof of a Western medical recommendation, a practitioner does not have the legal authority to practice TCM. If a specific doctor is named, the recommendation would be deemed a "referral"� and the TCM provider may potentially be held liable for the medical malpractice of the referred-to doctor.
3. Medical Referral. These states mandate that TCM treatments can only lawfully commence upon physician referral or diagnosis. Doctors who provide a referral to a specific TCM practitioner inherit potential liability for the TCM provider's malpractice. A medical diagnosis does not impose additional liability on a doctor in the event a patient thereafter seeks out the services of a TCM provider. In short, TCM is only available in these jurisdictions to those who have seen a licensed physician at least once.
4. Medical Supervision. This is the most restrictive setting, whereby TCM treatments are authorized only under the supervision of licensed physicians. The doctor therefore assumes full supervisory risk and liability for the TCM treatment. TCM medicine has no independent legal standing in these jurisdictions as it only exists under the dominion (and risk) of licensed physicians. By imposing unwelcome liability upon doctors—particularly in areas they may not feel sufficiently knowledgeable in—this statutory arrangement severely restricts the public's access to TCM.

Are you confused yet? Welcome to the club. The diversity of state legislation has confused Eastern and Western medical boards, schools, organizations, and practitioners for decades. Imagine now the level of confusion in the minds of the general public. This is why—despite enormous growth—the healing benefits of TCM remain largely unknown and/or misunderstood by the vast majority of the public.

Universal statutory harmony is the only national gateway to TCM accessibility, parity, marketability, and freedom. And it is the only way you, a TCM provider, will be able to effectively educate and serve those millions of confused people in need of your services all around you.

Michael A. Taromina, Esq., has represented practitioners, institutions, organizations and students in the TCM field. He serves as a member of the NCCAOM Ethics and Disciplinary Committee and has designed and taught programs in health law, ethics, professional liability and practice management.

If you have a question, comment, or issue you'd like Michael Taromina to address in an upcoming column, please e-mail it to newslettertcmworld.org.