Your Right to Know

Supremely Complicated Issues

By Michael A. Taromina, Esq.

Sometimes the Supreme Court gets it right. Their 6-3 majority decision to uphold Oregon's physician-assisted suicide law quashed (at least for now) the federal government's recent attempt to intrude upon the states' long-standing domain to regulate medicine. So let the debate of allowing medically assisted suicide continue. Let it be heard and decided within the states, where it belongs. And let different states decide differently on this critical issue of our time, if they so thoughtfully choose.

If all fifty states are permitted to regulate medicine differently, then why is there virtually no practical differentiation (save doctor-assisted suicide) in the scope of practice of a licensed physician from one state to the next? Like everything else in life, the answer lies in timing. The practice of Western medicine in the U.S. predated, hence created, its statutory regulations. Long before medical laws, boards, schools, or associations, "medicine" was diversely and perversely practiced—or perhaps better stated, in some cases "performed"—in urban centers and across the frontiers of America without legal constraint. Eventually public safety and scientific advancement demanded restriction and codification of medicine by statute based upon universally adopted biomedical theory. Being offspring of the practice itself, medical laws in all states were drafted and amended to meet already well-established standards. The result: No public confusion about a licensed physician's scope of practice from one state to another. Today, a doctor is a doctor in the U.S., from New York to California and everywhere in between. The only issue for the states looking forward is whether that scope should now include suicide assistance.

Timing, on the other hand, was not favorable to the legal birth of traditional Chinese medicine (TCM)—and other CAM therapies—in the U.S. State laws created the practice of TCM in the U.S. Unlike Western medicine, the practice of TCM in this country did not widely preexist the laws governing it. (Prior to state legislation, TCM was permitted, if at all, under licensed physician statutes. Remarkably, this is still the case today in some states.) Despite being much older in theory and practice, TCM was only recently imported to the U.S. and therefore subject to unique interpretations by each state. (Note: Historically the U.S. expanded westward by influx of immigration from the West. Had Eastern immigration waves started earlier, we may have developed a dual medical system.) Most significantly, TCM laws were (and still are) enacted under the enormous political influence and control of the embedded Western medical establishment. Medical supervision, medical referral, and medical recommendation are just a few of the many statutory controls Western medicine enjoys over TCM.

The result: Forty states and counting with some form of a TCM practice act, each one with a different scope of practice—a supreme long-term set of problems for the practice, practitioner and public.

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.

Do you have a question, comment or issue you'd like Michael Taromina to address in an upcoming column? Email Harmony at newsletter@tcmworld.org.