and S L. Cohn Programs for the Division for Research and Education in ical procedures and other CAM treatments, medical acu- mplementary and Integrative Medical Therapies, writes, puncture has the potential to be considered malpractice pe "Whether using Western diagnostic tests or evaluating the se, since the practice is still, by definition, considered outside flow of chi, the physician would be held to the standard of of the standard of care by most courts, relying on the con- care of conventional medicine for related diagnoses and treat- ventional medical community, which often dictates what ments. "16 Likewise, the American Academy for Medical Acu- stance courts will take in medical malpractice. 16 Overall puncture has clearly declared that members are strictly held though, this position is very unlikely since all courts(with to the standard of medical care of their license as a physician few exceptions) now have medical board statements allowing in practice and in referral as part of the Code of Ethics. 7 Dr. the practice of acupuncture as the scope of practice of med- Rotchford of the AAMA writes on the double liability medical icine And"while most complementary and alternative ther- acupuncturists face, between"the legal obligation to provide apies will remain outside of standard care, "6 acupuncture is the standard of care pursuant to a licensed physician"and quickly being integrated into the medical mainstream with the extra liability of providing a surgical procedure based on the rapid growth of medical acupuncturists in hospitals and a poorly understood/accepted physiology "5 But, he further third-party reimbursement programs, more refined and de points out, "The likelihood of being sued for a complication finitive studies that are federally funded, and more educa of acupuncture is nonetheless small. The major liability for a tional initiatives for acupuncture theory in medical school physician remains a missed diagnosis or a delay in providing curricula 2all of which seem to make acupuncture conven- standard therapy, which are also listed by the Federation of tional medicine, by the classic definition of the Eisenberg State Medical Boards in their statement on Complementary study20 so commonly referenced in both legal and biomedical and Alternative Medicine(CAM)use in medical practice. 18 literature. 19,2 Ironically, these same dangers were given by the Texas state Granted, as Cohen states, "Few, if any, sources of legal medical board in Andrews v. Ballard, in regards to non-phy uthority describe the applications of medical malpractice sician acupuncturists; though, in this case, the courts decided rules to the physicians integration of complementary and against the medical board, saying that restricting acupunc alternative medicine, "l and with the majority decision that ture to "those least schooled in the art"italics added for em- acupuncture is within the scope of practice for medical doc- phasis, ie, the physicians, was not a solution to the risks tors and osteopathic physicians, acupuncture spans into the carried in acupuncture treatment. 9 category of medical standard of care. But, overall, malpractice So, is malpractice really a substantive issue of concern for the for the medical acupuncturist should not pose a great threat medical acupuncturist? Considering that adverse side effects of so long as the physician practices with due care and common acupuncture are relatively rare, risks of malpractice are relatively sense in patient treatment as the"best legal protection low. Founding member of the AAMA Dr Joseph Helms writes, A more interesting development may appear once acu- "It is difficult to introduce new and lasting problems with acu- puncture is deemed to surpass the standard care for some puncture treatment, even if the treatment is not designed skill onditions that have, for the standard options, more fully as an experienced provider would desire. "2 A range of ad expensive, invasive, or risky procedures such as surgery, like verse side effects have been cited in relation to acupuncture, in chronic back pain or osteoarthritis. In these situations, in such as fatigue, depression, and other transient psychophysics which both the National Institutes of health and world logical states, syncopy, retained needle, cardiac tamponade, an Health Organization have indicated the effectiveness of organ punctures, like pneumothorax, pneumoperitoneum, he- puncture, the medical acupuncturist (or the medical doctor mothorax, and penetration of the kidney, bladder, and spinal in the future), who does not make available the option for medulla, though all are very rare. Perhaps more commonly, acupuncture in the treatment of these conditions could be liable for malpractice under the principle of lack of informed and bleeding at the insertion point are less severe and temporary consent, where using a fairly ineffective surgery could be undesired consequences of acupuncture treatment, some of equated with an "obsolete technology"that falls below the which are viewed by the Chinese as positive indicators of acu- puncture effectiveness medicine and conventional medicine, would be quite"radi In practice, then, malpractice concerns for the medical cal and controversial, "writes Cohen, "that a physician could acupuncturist will more likely deal with the standard of care liable in malpractice for failing to provide complementary inherent as a physician, rather than those issues related to the and alternative treatments. 0 practice of acupuncture itself, since most side-effects or com- plications, edema or bleeding at insertion point, are too tran- Addressing Variability Among sient to meet the malpractice elements of deviation from the standard of care and patient injury. Furthermore, the more Medical Acupuncturists: Self- serious adverse effects worthy for legal suit, such as serious regulation Through the infection or punctured organs, are unlikely results of acu- American Academy for Medical puncture by professionally trained medical physicians wit Acupunct expertise in anatomy and sterilization techniques Rs Although acupuncture carries a relatively low level of Medical acupuncturists are self-regulated by the professional .16 especially when compared to many conventional med- organization of the American Academy for Medical AcupuncPrograms for the Division for Research and Education in Complementary and Integrative Medical Therapies, writes, “Whether using Western diagnostic tests or evaluating the flow of chi, the physician would be held to the standard of care of conventional medicine for related diagnoses and treat￾ments.”16 Likewise, the American Academy for Medical Acu￾puncture has clearly declared that members are strictly held to the standard of medical care of their license as a physician in practice and in referral as part of the Code of Ethics.17 Dr. Rotchford of the AAMA writes on the double liability medical acupuncturists face, between “the legal obligation to provide the standard of care pursuant to a licensed physician” and “the extra liability of providing a surgical procedure based on a poorly understood/accepted physiology.”5 But, he further points out, “The likelihood of being sued for a complication of acupuncture is nonetheless small. The major liability for a physician remains a missed diagnosis or a delay in providing standard therapy,” which are also listed by the Federation of State Medical Boards in their statement on Complementary and Alternative Medicine (CAM) use in medical practice.18 Ironically, these same dangers were given by the Texas state medical board in Andrews v. Ballard, in regards to non-phy￾sician acupuncturists; though, in this case, the courts decided against the medical board, saying that restricting acupunc￾ture to “those least schooled in the art” [italics added for em￾phasis], ie, the physicians, was not a solution to the risks carried in acupuncture treatment.19 So, is malpractice really a substantive issue of concern for the medical acupuncturist? Considering that adverse side effects of acupuncture are relatively rare, risks of malpractice are relatively low. Founding member of the AAMA Dr. Joseph Helms writes, “It is difficult to introduce new and lasting problems with acu￾puncture treatment, even if the treatment is not designed skill￾fully as an experienced provider would desire.”2 A range of ad￾verse side effects have been cited in relation to acupuncture, such as fatigue, depression, and other transient psychophysio￾logical states, syncopy, retained needle, cardiac tamponade, and organ punctures, like pneumothorax, pneumoperitoneum, he￾mothorax, and penetration of the kidney, bladder, and spinal medulla, though all are very rare.2 Perhaps more commonly, contact dermatitis, inflammation, pain upon insertion of needle, and bleeding at the insertion point are less severe and temporary undesired consequences of acupuncture treatment, some of which are viewed by the Chinese as positive indicators of acu￾puncture effectiveness.2 In practice, then, malpractice concerns for the medical acupuncturist will more likely deal with the standard of care inherent as a physician, rather than those issues related to the practice of acupuncture itself, since most side-effects or com￾plications, edema or bleeding at insertion point, are too tran￾sient to meet the malpractice elements of deviation from the standard of care and patient injury. Furthermore, the more serious adverse effects worthy for legal suit, such as serious infection or punctured organs, are unlikely results of acu￾puncture by professionally trained medical physicians with expertise in anatomy and sterilization techniques. Although acupuncture carries a relatively low level of risk,16 especially when compared to many conventional med￾ical procedures and other CAM treatments, medical acu￾puncture has the potential to be considered malpractice per se, since the practice is still, by definition, considered outside of the standard of care by most courts, relying on the con￾ventional medical community, which often dictates what stance courts will take in medical malpractice.16 Overall, though, this position is very unlikely since all courts (with a few exceptions) now have medical board statements allowing the practice of acupuncture as the scope of practice of med￾icine. And “while most complementary and alternative ther￾apies will remain outside of standard care,”16 acupuncture is quickly being integrated into the medical mainstream with the rapid growth of medical acupuncturists in hospitals and third-party reimbursement programs, more refined and de- finitive studies that are federally funded, and more educa￾tional initiatives for acupuncture theory in medical school curricula12—all of which seem to make acupuncture conven￾tional medicine, by the classic definition of the Eisenberg study20 so commonly referenced in both legal and biomedical literature.19,21-27 Granted, as Cohen states, “Few, if any, sources of legal authority describe the applications of medical malpractice rules to the physicians’ integration of complementary and alternative medicine,”16 and with the majority decision that acupuncture is within the scope of practice for medical doc￾tors and osteopathic physicians, acupuncture spans into the category of medical standard of care. But, overall, malpractice for the medical acupuncturist should not pose a great threat, so long as the physician practices with due care and common sense in patient treatment as the “best legal protection.”16 A more interesting development may appear once acu￾puncture is deemed to surpass the standard care for some chronic conditions that have, for the standard options, more expensive, invasive, or risky procedures such as surgery, like in chronic back pain or osteoarthritis. In these situations, in which both the National Institutes of Health and World Health Organization have indicated the effectiveness of acu￾puncture,10 the medical acupuncturist (or the medical doctor in the future), who does not make available the option for acupuncture in the treatment of these conditions could be liable for malpractice under the principle of lack of informed consent, where using a fairly ineffective surgery could be equated with an “obsolete technology” that falls below the standard of care.16 This interesting reversal of integrative medicine and conventional medicine, would be quite “radi￾cal and controversial,” writes Cohen, “that a physician could be liable in malpractice for failing to provide complementary and alternative treatments.”16 Addressing Variability Among Medical Acupuncturists: Self￾regulation Through the American Academy for Medical Acupuncture Medical acupuncturists are self-regulated by the professional organization of the American Academy for Medical Acupunc- 28 D.L. Wirsing and S.L. Cohn