Examples of Legal Cases
Published January 25, 2016
There are several examples of instances where states have taken action against complementary medicine practitioners for the unauthorized practice of medicine.
In Brooks v. Tex. Med. Bd., 2015 Tex. App. LEXIS 6142 (Tex. App. June 18, 2015), the Court of Appeals of Texas upheld a Texas Medical Board-issued cease and desist order to a chiropractor after determining that she engaged in the unauthorized practice of medicine.1 Her website described her as “Dr. Amber Brooks,” a “biomedical doctor,” and “one of only a few pediatric biomedical doctors in the area.” 2 The site then credited her with “successfully bridg[ing] alternative and traditional medicine” using “biomedical” and “functional medicine” and describing that her success is achieved using “homeopathic detoxification, necessary nutritional supplements, dietary changes and counseling, craniosacral therapy, chiropractic adjustments, laboratory testing/evaluation to discover the origination of complications in children, treatment of bacterial/fungus overgrowth, and chelation.” 3 According to the court, when engaged strictly in the practice of chiropractic, as defined by law, a licensed chiropractor is not engaging in the unauthorized practice of medicine. But to the extent that a chiropractor exceeds the statutory scope of chiropractic, as was the case here, she engages in the unauthorized practice of medicine.4
In State v. Pac. Health Ctr., Inc., 135 Wn. App. 149 (Wash. Ct. App. 2006), the Court of Appeals of Washington affirmed a lower court’s ruling that while the defendant’s terminology differed from that of mainstream Western medicine, ultimately the defendant offered to “diagnose” physical conditions, and then provided remedies to “treat,” and thus was practicing medicine. The defendant and his close corporation, Pacific Health Center, Inc. (“PHC”), operated a health care practice, which consisted primarily of using electrodermal testing (“EDT”) to detect imbalances in “Qi,” the Oriental medicine concept of energy flow in the body.5 Based on the imbalances detected during EDT, PHC employees would recommend and provide various remedies, including dietary changes, nutritional supplements, homeopathic mixtures, and herbs.6 In coming to its conclusion that the defendant was practicing medicine, the court declared:
Whether a person is engaged in the practice of medicine within the meaning of [Washington law] and is, therefore, required to have a valid license under [Washington law] depends on the facts of the case and not on the name of the procedure employed, the origin of the procedure, or a legislative lack of clairvoyance…. Using EDT as an instrumentality to determine, or ‘diagnose,’ medical conditions in a patient and then recommending and selling specific remedies to that person to address those conditions are practices that unquestionably fall within the valid police power the legislature exercised when it regulated the practice of medicine.7
- In State Dep’t of Health v. Hinze, 441 N.W.2d 593 (Neb. 1989), a naturopath sought review of a district court’s decision, which found him in criminal contempt for violating an injunction from practicing medicine without a license. An investigator for the Nebraska Department of Health attended a seminar conducted by the naturopath who advertised that he would be providing information regarding homeopathic and naturopathic remedies. At the seminar, the naturopath used the title “doctor,” fielded questions from the audience on their illnesses and ailments, and responded with specific remedies. For example, a seminar participant had stated that she knew children who were infested with pinworms, and the naturopath suggested that “carrots, pumpkin seed, and gentian” be used to treat the pinworms.8 On appeal, the court noted that although the naturopath held a doctorate in pharmacy, he was acting as a practitioner of the healing arts at the seminar. Thus, the court held that the evidence supported the trial court’s finding that the naturopath violated the injunction against practicing medicine without a license.9
In Stetina v. State, 513 N.E.2d 1234 (Ind. Ct. App. 1987), an appellant practitioner sought review of a trial court’s decision granting the Medical Licensing Board of Indiana a judgment permanently enjoining the practitioner from the unlicensed practice of medicine. The practitioner’s activities involved iridology, an alternative medicine technique using patterns, colors, and other characteristics of the iris to determine information about a patient’s systemic health. An investigator posed as a person seeking advice on her physical condition. The practitioner elicited information from the investigator using questionnaires and examining the investigator’s eyes and, based upon this information, determined that the investigator had, inter alia, nutritional problems, abdominal problems, a slow electrical turnover, and poor circulation. To remedy these problems, the practitioner suggested a colonic irrigation (i.e., enema), mineral water, kelp, "amelade," progestine and more raw food.10 The practitioner argued that her conduct, which aimed at helping individuals follow proper nutritional advice, was outside the purview of the medical practice and that, in any event, most physicians did not address nutrition and thus her practice was complementary. The appeals court disagreed and affirmed the injunction, which (i) enjoined the practitioner from the unlicensed practice of medicine, (ii) prohibited her dissemination of information concerning the value of good nutrition and sale of products (presumably nutrition-related) to the public, and (ii) enjoined her from engaging in treatment, examination, diagnosis, or sales of products based upon her assessment of need or condition and from prescribing treatment on the basis of examination or diagnosis.11
In People v. Amber, 349 N.Y.S.2d 604 (N.Y. Sup. Ct. 1973), a defendant, an acupuncturist, filed a motion to dismiss charges for the unauthorized practice of medicine.12 The defendant acupuncturist argued that the statutory ban 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.13 The court disagreed and refused to dismiss the charge, holding that the “sizing up” or “a comprehending of the physical or mental status of a patient” constitutes diagnosis, which is part of the practice of medicine.14
As each of these cases illustrate, the “practice of medicine” is defined broadly and any unauthorized activity infringing upon this broad scope of practice risks potential prosecution under the unauthorized practice of medicine statutes.
While the unauthorized practice of medicine has been pursued by many states since the laws were first adopted, there have not been many cases relating to yoga professionals. One unauthorized practice case in 2000, however, involved a California-licensed physical therapist who had his license suspended for aiding and abetting the unlicensed practice of physical therapy by a yoga practitioner.15
In an undercover operation by the California Board of Physical Therapy, it was determined that Mr. Robbins, the physical therapist, had improperly referred a patient with low back pain to an unlicensed, certified athletic trainer for the treatment of the patient through yoga. Mr. Robbins did not actively participate in the patient’s treatment but co-signed documentation relating to the therapeutic yoga sessions and submitted invoices to the patient’s insurance for physical therapy sessions.
This case highlights that professional sanctions could, in certain cases, extend beyond the unlicensed yoga therapist to reach other licensed professionals. Therefore, not only could the yoga therapist be found to have violated the state’s unauthorized practice statute(s), but a licensed professional who refers a patient to the yoga therapist could potentially be found to have aided and abetted the unauthorized practice.
1 Brooks v. Tex. Med. Bd., 2015 Tex. App. LEXIS 6142 (Tex. App. June 18, 2015).
2 Id.at *1.
4 Id. at *4.
5 Generally, EDT uses a computerized, signal-emitting galvanic skin response device to “measure changes in electrical conductance at acupuncture points on a person’s hands.” State v. Pac. Health Ctr., Inc., 135 Wn. App. 149, 153-154 (Wash. Ct. App. 2006).
7 Id. at 166-167.
8 State, Dep’t of Health v. Hinze, 441 N.W.2d 593, 595 (Neb. 1989).
9 Id. at 598.
10 Stetina v. State, 513 N.E.2d 1234, 1236 (Ind. Ct. App. 1987).
11 Id. at 1239.
12 At the time, New York had no acupuncture licensure.
13 People v. Amber, 349 N.Y.S.2d 604, 611-612 (N.Y. Sup. Ct. 1973).
14 Id. at 612.
15 See, “In re the Matter of William Robbins – License No. PT 13233”, Case No. 1D-1999-62237, Physical Therapy Board of California (July 14, 2000), See also, Stipulation Order entered on September 7, 2001, staying the revocation of Mr. Robbins’ license subject to the stipulated conditions. Mr. Robbins had been found guilty of a misdemeanor by a California court in 1999 under the same facts, for aiding and abetting the athletic trainer in the unlawful practice of physical therapy in violation of Section 2630 of the California Business and Professions Code.