Apr 08 2010

Springtime for Charlatans

Imagine a ring of car thieves lobbying the government to soften the laws against stealing cars. Don’t blame the thieves – people should be more responsible for their own cars, and that is just the chance you take when you own a car. Under the radar, without any comment by the media, in state after state they successfully lobby the legislatures to pass laws that make it more difficult to prosecute and punish car thieves.

Of course this is outrageous, but not just because it’s silly to consider that something like stealing a car should not be a serious crime. It is also outrageous for someone who is violating regulations to lobby for those very regulations to be weakened so that they can continue to break the regulations without fear of action being taken against them. At the very least such action should garner significant attention and debate, and lawmakers should consider carefully if the public’s best interest is being met, or simply the person who doesn’t want to be regulated.

This is exactly what is happening in many states with so-called “health care freedom laws” – practitioners of dubious treatments are lobbying state legislatures to weaken regulations against practicing dubious treatments. There are even specific cases in which an individual practitioner was found to be practicing below the acceptable standard of care, but was able to escape regulation because of laws specifically passed to protect substandard care. This is exactly what happened with Dr. William Hammesfahr – he was found to be practicing substandard care by the State of Florida, but was able to appeal and win on the grounds that his treatment was “alternative” and therefore magically exempt from the standard of care under Florida’s new health care freedom law.

The same thing has now happened with respect to Dr. Rashid Buttar – the North Carolina Medical Board (NCMB) has been investigating him for charging patients tens of thousands of dollars for dubious treatment for cancer, autism, and other indications. These includes using chelation therapy for autism, based upon the discredited notion that autism is mercury toxicity.  The NCMB was making their case that Buttar was using questionable, and at best highly speculative and experimental treatments, while misleading patients into thinking they were effective (creating undue expectations) and charging exorbitant amounts. In fact a board of inquiry recommended that Buttar have his license restricted so that he cannot treat children or cancer patients.

However, that recommendation was set aside for technical reasons. While a hearing before a judge was pending, Buttar and others successfully lobbied the North Carlina legislature to pass a health care freedom law.

Mansfield, the board’s attorney, said a change in state law, which took effect in October, was partly the reason. The law, one of those that Buttar had pushed for, prevents the medical board from disciplining a physician for using non-traditional or experimental treatments unless it can prove they are ineffective or more harmful that prevailing treatments.

Essentially the hands of the NCMB were tied, in the middle of their investigation of Buttar, and he was let off the hook with a slap on the wrist. He is now free to continue to practice his dubious medicine on the unsuspecting patients of North Carolina and beyond. The board now has the burden of proof that a treatment is ineffective, which is impossible for treatments that have not been adequately studied. In fact, such laws create another disincentive for practitioners of dubious modalities to study their treatments.

The Standard of Care

To put this into perspective, we need to back up and discuss the standard of care. Practicing medicine is a profession, which means we grant certain individuals the privilege of practicing but demand from them certain assurances, ethical guidelines, and standards. Without a standard of care, then anything would be fair game and the principle of caveat emptor would rule. If that is what the majority of our society really wants, then so be it. But I don’t think that is the case.

If we agree that there should be some standard of care, then the only question then is how to determine what that standard should be and how to enforce it. For the most part, the standard is determined by the prevailing accepted practice among experts, which in turn should be based upon scientific evidence. Practitioners are expected to know what the standard of care is and to abide by it, unless they have a very good reason for doing otherwise (and are willing to defend their actions in court). In the US each state has a medical board tasked with investigating any practitioners who are alleged to be practicing significantly below the standard of care. In my experience they do not micromanage or get involved in minor cases, but only egregious violations of well accepted standards. It takes a lot to get their attention.

But the standard of care is being steadily eroded in this country, without any media attention or public debate. Practitioners of substandard or dubious methods are successfully lobbying their state legislatures to weaken the boards of health that are supposed to maintain the standard of care. They call what they are advocating “health care freedom” and claim it is the freedom of patients to get whatever treatment they want. But in reality it is freedom for practitioners to practice whatever they want – even outright deception and quackery – without being held to any standard. In most states, as in the slap on the wrist for Buttar, all that is required is that patients are informed that the treatment is “alternative” – but “alternative” is not defined. It’s basically anything the practitioner wants it to be.

In some states specific treatments or practices are targeted. For example, recently Connecticut passed a law exempting practitioners who treat chronic lyme disease from the standard of care. Chelation therapists have also been successful in protecting their pseudoscientific practices. But increasingly, blanket exemption is being granted to anything “alternative.”

Conclusion

The standard of care is vitally important in our complex health care system. We should be looking for ways to enhance it, not erode it. Ineffective treatments victimize patients and are a waste of resources. It is unethical to charge large sums of money for experimental treatments by creating an expectation of benefit, and in fact experimental treatments should only be given as part of research protocols, or under strict conditions of compassionate care.

But Buttar, Hammesfahr, and others have created a lucrative practice out of dubious treatments and have successfully hidden behind laws specifically designed to hamper state regulators. In Buttar’s case he apparently lobbied for such laws while under investigation.

The media is nowhere on this issue. The public is largely unaware. No one I speak to (outside my small group of colleagues) has any idea this is happening.

This is also part of a broader problem – by labeling unscientific or questionable practices (what used to be called “health fraud”) as “alternative” or “complementary”, charlatans have succeeded in getting appointed as the foxes in charge of the hen house. They are now their own gatekeepers in the bizarro world of CAM. On some morbid level I have to admire their chutzpah – they have pulled off the greatest scam in history.

Note:

Orac adds his “insolence” to this issue as well.

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20 responses so far

20 Responses to “Springtime for Charlatans”

  1. Chris Lambon 08 Apr 2010 at 9:01 am

    Another very interesting article Steve. Have you considered simply calling up CNN or whatever to bring this to their attention? Your impressive credentials coupled with the fact your not actually trying to peddle anything yourself might be enough to gain sympathy from a reporter.

    It would definitely be more interesting than whatever Tiger Woods has been doing recently anyway :)

  2. SpicyCupcakeon 08 Apr 2010 at 10:38 am

    @Chris Lamb More interesting to you or me. However it always worries me when a reporter gets involved. Unbiased journalism is hard to find now days and not necessarily due to the individual journalists. SGU discussed on multiple occasions the quality of reporting, particularly science reporting. On an interview (Steve may recall more thoroughly than I) their guest explained the news reports on what people want to hear. It’s the Conan late show problem (the following is speculative at best).

    Conan’s younger fans got his Late Show through other means, such as the internet, these fans were not “counted” in the TV ratings. This meant the Television Station did not cater to their support, since the standard rating model is concerned about charging for a time slot. They got gave Conan the boot and brought back Jay Leno for the time slot. In the same vein, many people interested in science and other subjects are not seen as the mass media’s primary consumers. We get out information through new media and on a more selective basis rather than consuming whatever the TV is willing to dole out. Therefore we are not given as great a consideration in what gets to the prime time news. Prime Time shapes public opinion, interest, and discussion. Again that was mostly speculative and derived from articles I read some time ago and the SGU episodes.

    I do agree that this subject needs to be drug kicking and screaming into the spot light. Hey, Steve writes a book; it might get you on The Daily Show or Colbert Report! =) The old advertisement goes “Recent surveys show that more people get their news from the Daily Show…Than probably should.”

  3. locutusbrgon 08 Apr 2010 at 11:59 am

    The big wedge in the door was the supplement industry affecting the FDA regulations. Since then it has been snake oil o’rama. Patients still believe that the print/tv/media provide respectable, reliable medicine reporting. The more I see the more frustrated I get.
    I give a blanket statement to my patients that I cannot recall the last time I saw a medical story that was not incorrect or exaggerated. So I tell them to stick with medicine advice.

    I guess I should start offering Reki or Theraputic touch. It would be a good hedge against a malpractice lawsuit. I could claim that it was an alternative treatment and within the standard of care.

  4. johncon 08 Apr 2010 at 12:23 pm

    The car thief metaphor makes no sense.

    Charlatans are more like dishonest car-salesmen, who don’t suffer anywhere near as much legal contention as car thieves.

    People who steal your kidneys are the medical equivalent of car thieves.

  5. Steven Novellaon 08 Apr 2010 at 12:36 pm

    john – it was an analogy only in the respect that people are lobbying to hamstring the very regulators who are there to regulate them. Perhaps a better analogy would be car thieves lobbying for fair treatment by cops, which is a pretense to manufacture more and more technical loop holes through which they can escape if they are ever caught.

  6. stompsfrogson 08 Apr 2010 at 2:13 pm

    I wonder if you could somehow shoehorn this topic into the “health care debate.” Like, charlatans are trying to appear legit so they can get covered by gov’t sponsored health care… Try and get the Rethuglicans up in arms against them? That might be a good curve ball.

    Colbert has had Ariana Huffington on his show several times… I would think that someone like Rachel Maddow would be a better bet, if you could get her.

  7. CrookedTimberon 08 Apr 2010 at 3:51 pm

    This is very frightening and needs a broader audience.
    I imagine it would be very difficult to flesh out the damage done by charlatans as a whole in terms of complications/lost life/lost money to ineffective treatments; however some sort of figure would cause people to pay attention. Just as I constantly hear the “traditional medicine and hospitals kill x amount of people every year” meme.

  8. BayAreaGuyon 08 Apr 2010 at 4:24 pm

    If any of you will be in the SF Bay Area on Friday, 4/16, you might want to know that our next speaker will be talking about just these issues.

    Brian Dunning (of Skeptoid.com) – “Health Scams and Myths”
    Ohlone College, Fremont CA
    4/16/2010 7pm

    For more info: http://www.TinyURL.com/DunningAtOhlone

  9. DLCon 08 Apr 2010 at 9:22 pm

    Con men lobbying to make gullibility the standard ?

  10. daijiyobuon 08 Apr 2010 at 11:22 pm

    Re: “practicing medicine is a profession, which means we [...] demand from them certain assurances, ethical guidelines, and standards [...] a standard of care [...without which] the principle of caveat emptor would rule.”

    But naturopathy is a profession [they say] without assurances, ethics, and standards!

    With a standard of care that is ABSURD!!!

    Caveat emptor.

    Ah-ha-ha-ha.

    -r.c. [while you should credat emptor].

  11. eiskrystalon 09 Apr 2010 at 3:55 am

    -But the standard of care is being steadily eroded in this country, without any media attention or public debate. -

    This surprises me. The media love a good “lone doctor vs the ebil establishment” piece.

    So it’s probably best if the mainstream media “stays” quiet about this.

  12. SteveAon 09 Apr 2010 at 7:13 am

    I assume that State Medical Boards have some sort of charter that establishes a ‘duty of care’ towards the people they represent ie the citizens of that State.

    Aren’t there grounds for legal action against a Board if it can be shown to be failing that duty (assuming there is one)?

    If Board members could ultimately be held liable for the malpractice their rulings allow, it might make them think more carefully.

    Now to cook up a big batch of Magic Turnip Oil (cures all known diseases, and hair loss) and find me a flight to Florida!

  13. Steven Novellaon 09 Apr 2010 at 7:45 am

    Steve – the problem is not so much that medical boards are making bad decisions. Rather, either they do not have the resources to fulfill their mission. Or (as with the topic of this piece) they are hamstrung by state laws specifically designed to hamstring them so as to allow quackery to flourish. They cannot be held responsible for this.

  14. Chris Lambon 09 Apr 2010 at 8:49 am

    SpicyCupcake:
    Thanks to SGU and others I’m well aware of the media’s treatment of reality based topics but what are we saying here “Can’t win so don’t try”?

    An evil quack, stealing tens of thousands of dollars from the most vulnerable people and free to do so because of weakened government regulations he successfully campaigned for? I don’t think you have to be a skeptic or even a fan of science to appreciate the severity of something like that. I could even imagine Fox newcasters acting all indignant at this story. Of course as someone suggested it could easily go the other way but my point is what if someone like Steve actually just called up a few news organisations with this? Is it not worth a try?

  15. delaneypaon 09 Apr 2010 at 1:46 pm

    Nice post…I have to point out that “standard of care” also hinders science-based medicine another way….I am supposed to practice medicine the way my colleagues are, even if they are practicing substandard care.

    For example, a colleague of mine saw a patient, spent quite a bit of time discussed pro/cons of PSA testing. Pt decided not to get tested, then got prostate cancer. Sued his doctor for not testing. And the patient won. Why? The plaintiff’s attorney had several primary care doctors testify they always check PSA, don’t even ask the patient…thus defining the “standard of care” for that case. By not checking PSA, my colleague was considered to be practice below the standard of care.

    There is no legal concept of practicing medicine better than the current standard of care. If you not practicing current standard of care, you’re open to malpractice. A real shame.

  16. BillyJoe7on 10 Apr 2010 at 3:15 am

    delaneya,

    Is that an actual case you mentioned there.

    If so, it’s extraordinary – unless you live in America of course!
    In Austrailia, the RACGP does not recommend routine screening for prostate cancer. Furthermore, if a patient asks to be tested, the doctor must discuss the pros and cons before proceding to order that test.

    It is possible that a patient who suffers incontinence and impotence from prostatectomy – which resulted from his doctor ordering that test – might end up suing his doctor for assault and battery when it is be pointed out to him that there is no proven benefit from prostatectomy – as evidenced by two large recent clinical trials.

    Perhaps, in the end, doctors should just do what’s right for the patient, not what will save him from possible litigation.

  17. Cow_Cookieon 10 Apr 2010 at 10:40 am

    You do realize you used “the media” when you linked to a Charlotte Observer article?

    I’m guessing you learned that other states are passing these laws through “the media” as well. AP just had a critical story about an experimental sports medicine treatments. Wired devoted a whole issue to debunking the vaccine scare – an issue that has been covered extensively in general interest newspapers. “The media” hasn’t exactly been quiet on alternative treatments.

    Sure, the conversation hasn’t been as vigorous as with other issues. But I think that says more about what the public cares about and is able to understand than it does about “the media.” They brought the dish to the pot luck. It’s not their fault if no one’s eating it.

    You’re a doctor, so I’m sure this coverage doesn’t satisfy your preferences. But this is a single issue at a time when there are two wars, a health care overhaul, financial reform and any number of local government issues to cram into a shrinking number of pages (not to mention the much in-demand celebrity gossip that I’d just as soon see disappear altogether). Heck, I’d like to see more debate over tax increment financing districts, but that isn’t going to happen either.

    “The media” can only hope to offer a cross-section of well-reported survey-type articles that hopefully pique readers’ curiosity enough to either stir discussion or prompt them to research the issue further in specialty publications.

  18. delaneypaon 12 Apr 2010 at 1:34 pm

    The case I summarized was described in more detail:

    JAMA, January 7, 2004—Vol 291, No.1, page 15-16

    Plaintiff was awarded $1,000,000.

    “The plaintiff’s lawyer was convincing. The jury sent a message…that they didn’t believe in evidence-based medicine. They also sent a message that they didn’t believe in the national guidelines and they didn’t trust the shared decision-making model. The plaintiff’s lawyer won.”

  19. BillyJoe7on 13 Apr 2010 at 7:14 am

    May I suggest a topic: Testing for prostate cancer.

  20. rakoon 10 May 2010 at 10:28 am

    The Institute of Medicine estimates that there is an 18-year time lag between conception of a new medical practice and implementation of that practice.

    This might go to the issue of what should set the standard of care. 50 years ago, the standard depended on doctors’ practices. Where practices significantly vary among doctors and the science is debated, should doctors be given discretion?

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