“Practicing Medicine without a License” by Kerry L Abshire
Congress passed patent legislation in 1793 that allowed people to file for the exclusive right to sell a certain product. Under this law, inventors and manufacturers “patented” their products so no one else could make and sell another product just like theirs. To acquire a patent, a description of the product had to be filed with the patent office. Since most medicine makers did not want to reveal their formulas, they applied for patents on the shape of the bottle and the label. Labels contained the product name, an identifying symbol or picture, and, usually, highly exaggerated claims for cure.
Thus, the formulas for early “patent medicines” were not protected by law but held secret. Without regulations and control, most of these medicines ranged from worthless to harmful. Some contained powerful and dangerous narcotics such as cocaine, opium, and morphine, and most had high alcohol content. The early 19th century had seen the rise of patent medicine and the nostrum remedium (folk medicine) trade. Although some remedies were sold through doctors of medicine, most were sold directly to consumers by lay people, some of whom used questionable advertising claims. Patent medicines were supposedly able to cure just about everything. Nostrums were openly sold that claimed to cure or prevent venereal diseases, tuberculosis, and cancer.
During this time period, medicine shows were common. Medicine shows were traveling horse and wagon teams which peddled “miracle cure” medications and other products between various entertainment acts. They are most commonly associated with “miracle elixirs” (sometimes referred to as snake oil), which, it was claimed, had the ability to cure any disease, smooth wrinkles, remove stains, prolong life or cure any number of common ailments. Indian remedies became very popular about this time. Many people were convinced that plants and herbs found only in North America could cure disease. And, they thought the American Indians knew the secret formulas. So, the patent medicine makers jumped on the bandwagon, and junk medicine with Indian-sounding names became very popular.
By 1904, patent medicine had become a $74.5 million business and had earned a shady reputation. In the mid-19th century, as the germ theory began to replace the metaphysical causes of disease, the search for invisible microbes required the world to embrace the scientific method as a way to discover the cause of disease. In the U.S., licensing for healthcare professionals had all but vanished around the time of the Civil War, leaving the profession open to anyone who felt inclined to become a physician. The market alone determined who would prove successful and who would not. Medical schools were plentiful, inexpensive and mostly privately owned. With free entry into the profession, and education in medicine cheap and available, many men entered practice, leading to an overabundance of practitioners which drove down the individual physician’s income. In 1847, the American Medical Association (AMA) was formed and established higher standards for preliminary medical education and for the MD. At the time, most medical practitioners were unable to meet the stringent standards, so a “grandfather clause” was included. The effect was to limit the number of new practitioners. In 1849, the AMA established a board to analyze quack remedies and nostrums and to enlighten the public about their nature and their dangers.  Relationships were developed with pharmaceutical companies in an effort to curb the patent medicine crisis and consolidate the patient base around the medical doctor. By the turn of the 20th century, the AMA had created a Committee on National Legislation to represent the AMA in Washington and re-organized as the national organization of state and local associations. Intense political pressure by the AMA resulted in unlimited and unrestricted licensing only for medical physicians that were trained in AMA-endorsed colleges.
By 1901, state medical boards were created in almost every state, requiring licentiates to provide a diploma from an AMA-approved medical college. In 1905, Samuel Hopkins Adams published an exposé entitled “The Great American Fraud” in Collier’s Weekly that led to the passage of the first Pure Food and Drug Act in 1906, which required narcotic ingredients to be listed on the labels of proprietary (patent) medicines and prohibited the use of outrageous, misleading claims. By 1910, the AMA was a powerful force; this was the beginning of organized medicine and an end to practicing medicine without a license.
The AMA became a watchdog over organized medicine. The AMA created the Department of Investigation (DOI) to hunt out quackery in 1906. The DOI was disbanded in 1975. With more than 2,000 tribes of indigenous people in North America, the healing practices varied widely from tribe to tribe, involving various rituals, ceremonies, and a diverse wealth of healing knowledge. Herbal remedies filled an important role within these healing practices, stretching beyond the body’s aches and pains and into the realm of the spirituality and harmony. Many Native medicine practices were driven underground or lost because they were banned or illegal in parts of the United States until 1978, when the American Indian Religious Freedom Act was passed.
Even today, there are difficulties with ceremonies and rituals on sacred sites. These activities are sometimes forbidden because the land now serves other purposes. Today, Native Indian and American Indian community-based medical systems still practice some Native American healing practices and rituals. Most alternative health care practitioners have heard the phrase “practicing medicine without a license”, but are unaware of the practical definition of this phrase and its application in the legal system. One of the most common methods for prosecuting an alternative practitioner is to document the manner in which the practitioner describes their practice to clients, both verbally and in printed promotional literature.
Physicians have customarily used certain terminology to describe their profession and its purposes: “consult with patients”, “treatment of disease or illness”, “prescribe remedies”, “diagnose illness”, “cure illness”, “provide therapy”, “administer medicine”, “relieve symptoms of illness”, as well as others. The routine use of these words and phrases when describing or explaining one’s profession and purpose to clients constitutes prima facie evidence of practicing medicine. And, of course, if one doesn’t have a license to practice medicine, then one may be prosecuted for practicing medicine without a license.
Whether or not to use medical jargon is not mere nit-picking over words, but a question of intent. For even if you avoid using the forbidden words, yet by your actions demonstrate that your purpose is to diagnose and treat illness, you may still be practicing medicine. Besides the medical phrases “cure illness”, “prescribe medicine”, and others, use of the title “Dr.” or referring to oneself as a “doctor” may also be used as prima facie evidence of practicing medicine without a license, when used in the context of presenting oneself as a health practitioner. There are many stories in court documents with regards to the unauthorized practice of medicine. Here are two stories about famous alternative healers. Daniel David Palmer is known as the “Father of Chiropractic” as he started the modern practice of spinal manipulation. The great discovery of chiropractic came on Sept. 18, 1895 when, using his hands, readjusted the spine of a deaf patient, and the man regained his hearing. Word of Palmer’s success in “curing” deafness traveled fast. Soon people with deafness from across the country were awaiting his miraculous treatment. Although he had some success in helping those with deafness he soon realized that many other conditions were benefiting from the same treatment.
Over the succeeding months, patients came to Palmer with every conceivable problem, including flu, sciatica, migraine headaches, stomach complaints, epilepsy and heart trouble. Two years later, Palmer opened the Palmer School of Chiropractic in Davenport, Iowa and went on to open other schools in Oklahoma, California and Oregon. Although Chiropractic was proving to be a successful way of healing the body it was not readily accepted.
The medical community at the turn of the 20th century was afraid of Palmer’s success and began a crusade against Chiropractic. They wrote letters to the editors of local papers, openly criticizing his methods and accusing him of practicing medicine without a license. In 1902 and1905, D.D. Palmer was indicted for practicing medicine without a license in California and Iowa. He was sentenced to 105 days in jail and was required to pay a $350 fine in Iowa. D.D. Palmer served his time and paid his fine but this didn’t keep him from adjusting. His patients (including his jailor) came to his jail cell to get their adjustments. Through the mid-20th Century, the American Medical Association ridiculed chiropractic as an unsafe, even lethal form of quackery. Todays recognition and acceptance of chiropractic is primarily based on the strength of the growing body of scientific research, which all started from D.D. Palmer’s son; B.J. Palmer’s commitment to make Chiropractic Scientific. Chiropractic is now the world’s fastest growing and largest drugless healthcare profession.
Our second story is about Chief Two Moon Meridas, a name to be remembered in the history of patent medicine in America. Little is known about Chief Two Moon’s early life. He claimed to be born at Devils Lake, South Dakota in 1888. It is believed, that he sold herbs as a young man on the street corners of Philadelphia and New York where he met his wife.
In 1914, shortly after their marriage, Chief Two Moon and his wife moved to the Graf rooming house on Griggs street in Waterbury, Connecticut. Here he began to make local history selling his herbal medicines on the street and in parking lots as well as from his rooming house. When none of his patients died during the 1918 flu epidemic, his fame spread rapidly. By 1921, having more business than he could efficiently conduct from the rooming house, Chief Two Moon moved to a house-and-store combination on Wales Street. His “Bitter Oil-the Wonder Tonic” soon became his most popular medicine. Meridas advertised Bitter Oil as a “miracle medicine [that] removes all internal poisons, thus relieving constipation, gastric conditions, sick headache, biliousness, kidney and bladder troubles, etc. Consistent use will soon put vigor and vitality into any run-down system.”
Before long, leading drugstores carried Bitter Oil along with Chief Two Moon Herb Co.’s other products. Displays of Chief Two Moon products filled storefront windows with full-color posters and life size stand-up cutouts of the chief in full Indian attire, including a war bonnet. In the fall of 1930, Chief Two Moon and his wife traveled to Europe where they had a private audience with Pope Pius XI. The Vatican newspaper referred to Chief Two Moon as the “leader of the Indians.”
While in Rome, Chief Two Moon received recognition from Italian surgeons and physicians as the “great medicine man from America.” They also praised his ability to diagnose illnesses. After returning from Europe, Two Moon spent much of his time in courtrooms.
On May 3, 1932, Meridas was indicted and later convicted of practicing medicine without a license in New York and Connecticut.  Two Moon Meridas died on November 3, 1933. Often called a “modern miracle man,” Two Moon himself never claimed to have performed a healing miracle; however, thousands of his “out of town visitors” insisted that he cured them when medical science had failed.
Since states are responsible for providing medical licenses, each state has a slightly different legal definition for the practice of medicine. In general, a person practices medicine when he or she tries to diagnose or cure an illness or injury, prescribes drugs, performs surgery, or claims he or she is a doctor.
So your friends cannot be considered to be practicing medicine when they tell you to take more vitamin C, since they never claim to be doctors.
Second, advice may be the practice of medicine when the advice is specific to a particular person’s illness or injury. Magazines and websites that offer general tips for getting over the common cold, therefore, are not engaging in the practice of medicine.  States typically define practicing medicine as any activity that is intended to cure disease or preserve health. However, this broad definition does not include activities such as selling vitamins, providing books on nutrition or healing, providing general advice, selling home remedies, or related activities.
However, if someone diagnoses people, prescribes medication, or performs physical examinations, this is all activity covered by the unauthorized practice of medicine.  California Business and Professions Code Section 2052 states in part: any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment. In the absence of licensing, the First Amendment of the Constitution protects our freedom of speech to provide information to clients related to their health. However, this is restricted by the necessity to avoid practicing medicine without a license. In addition, if you provide herbs to your clients, and use language that can be construed as diagnosing, preventing, treating, or curing disease, you may also be violating FDA and FTC regulations regarding product claims, since in that context the herbal remedy can be considered an unapproved drug.  The easiest method of protecting your rights is to avoid at the outset of using medical jargon to describe your professional purpose. Otherwise, certain terminology could constitute prima facie evidence of practicing medicine without a license. Medical practice is regulated on the state level, and herbalists should familiarize themselves with the language of the statutes in the state in which they practice.
Herbalists should be clear and transparent with all clients and the public about this and the American Herbalist Guide advises all practitioners to utilize a Consent and Disclosure form that makes clear you are not offering to cure disease or preserve health.
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2. Old World and New: Early Medical Care, 1700-1840 by Kate Kelly
3. Goodman J, Musgrave G (1992) How The Cost-Plus System Evolved , excerpted from: John C. Goodman and Gerald L. Musgrave Patient Power Washington, DC: Cato Institute W67 National Center for Policy Analysis | NCPA
4. American Medical Association Web site (AMA History 1847 – 1899)
5. Adams, Samuel Hopkins (1905). The Great American Fraud (4th ed., 1907). 6. Federal Food and Drugs Act of 1906 (The “Wiley Act”) 7. http://en.wikipedia.org/wiki/History_of_chiropractic
8. http://www.mnwelldir.org/docs/history/quackery.htm Paragraph; “The Modern History of Quackbusters Quackpots”
15. Pharmacy in History; Vol. 37, No. 3, (1995), pp. 143-151; Chief Two Moon Meridas: “Indian Miracle Man”?