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Lawyers Treat Symptoms, Too!

by

Anthony di Fabio

The Arthritis Trust of America

http://www.arthritistrust.org

The sad plight of James Forsythe, M.D., H.M.D. as reported in the January

2007 Townsend Letter, “Sea Change in Government Tactics Against Cam Pro-

viders,” bemoans vitriolic violation of due process rights by governmental au-

thorities. When this happens to you, or to the average alternative/complemen-

tary medicine practitioner, naturally, the very first step is a quick visit to your

nearest sympathetic legal eagle, your attorney.

Just as all doctors are not equal (no matter how their state license reads),

neither are all lawyers equal (no matter how their state license reads).

And, just as your friendly neighborhood medical doctor must also earn a

living, so must your emphathetic attorney. Conflicts between self-survival and

solving the client’s problem can easily ensue in both instances.

Although qualified to do otherwise, and as your family doctor usually draws

upon a specific population, or practices jointly with particular hospitals, so does

the lawyer draw from those of specific need and also normally practices as an

officer of the court under particular jurisdictions.

There are many distinctly Machiavellian tactics used by governmental au-

thorities to “get” alternative/complementary practitioners.

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For now, keep in

mind that, no matter how clever your friendly neighborhood lawyer, s/he is not

really prepared for the depth and extent of the tactics that will most likely be

employed.

Let’s set up one of the most common ploys by State and Federal officials:

John Doe is well known for his expertise in treating cancer. By word-of-

mouth patients flock to his medical center where not only are their tumors put

into regression and cancer spread is halted, but each patient is taught metabolic

nutrition and change of life-style so that when they return home they sustain

their gains.

A member of the Quack, Quack Busters organization -- or an equivalent

sub-species -- gets wind of the fact that Dr. Doe is not using FDA and State

Medical Board “approved” radiation, surgery, or chemotherapy, and so he has

secretly reported John Doe to the State Medical Board.

Digressing briefly from John Doe’s tribulations, let’s address this so-com-

monly used tactic, “you’re not using FDA ‘approved’ procedures.”

Remember, Federal law normally trumps state law!

Ray Evers, M.D., (deceased) often cited as the father of chelation therapy,

lost several fortunes defending from the multiple evil empire, but finally suc-

ceeded in bringing his case before the United States Supreme Court. Derived

from rulings in his favor is a paragraph from the “Foreward to the 50th Edi-

tion,” Physician Desk Reference (1996: the only copy available to me):

“The FDA has also recognized that the FD&C [Food Drug and

Cosmetic Act] does not, however, limit the manner in which a physi-

cian may use an approved drug. Once a product has been approved

for marketing, a physician may choose to prescribe it for uses or in

treatment regimens or patient populations that are not included in

approved labeling. The FDA also observes that accepted medical prac-

tice includes drug use that is not reflected in approved drug labeling.”

[See United States v. Evers, supra, 643 F.2d at 1048, quoting 37 Fed.

Reg. 16503 (1972).]

Two observations can be made from the above quotation:

1. State (and FDA) insistence on drug use only according to “FDA ap-

proval,” is not the law of the land.

2. Since most state constitutions do not address this specific legal point,

then accusations against you for so doing should immediately be removed to

Federal jurisdiction -- not to be heard in any State court, although, within limits,

State Courts are jurisdictionally capable of hearing both Federal and State con-

stitutional deprivations.

Federal preemption over state law consists of two types:

“Express preemption” occurs where Congress says within the statute ‘we

hereby preempt.’ Here, federal laws are explicitly precluding state and local

regulations.

“Implied preemption” has, within itself, three sub-categories: conflicts pre-

emption, preemption because state law impedes the achievement of a federal

objective, and preemption because federal law occupies the field.

An apparent conflict preemption in the State of California, for example,

when treating cancer, mandates by law that licensed physicians use only “ap-

proved” methods, which interprets to mean radiation, chemotherapy or surgery.

So, how does one reconcile the Supreme Court’s prior, strong statement

that the physician has carte blanche to use treatments he deems necessary with

this blanket State usurpation of physicians’ legal and professional right to choose

and patients’ freedom-of-choice rights?

Probably Federal case law -- those court cases testing the conflict between

these diametrically opposed directions -- is or will be complex and circuitous,

depending upon specific litigagous details before reaching a direct confronta-

tion.

Presumably the Federal Government’s power to determine what consti-

tutes “safe and effective” drug use does, however, trump California’s law on the

liberal use of marijuana!

Conflicts between State and Federal law are complex and often settled in

favor of the State provided the Federal Court can find a way to do so. Numerous

preemption cases follow no predictable jurisprudential or analytical pattern.

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But, back to Dr. John Doe:

After due hurrumphing, members of the state’s distinguished set of politi-

cal appointees, the medical board, turns the quack, quack busters’ pseudo com-

plaint over to the attorney’s general office.

No copy will go to Dr. Doe so that, at this point, John Doe doesn’t know

who is complaining about him, or what the complaint is about, or even that a

complaint exists. We can all be assured, however, that it will not be one of Dr.

Doe’s patients!

The State attorney’s general office is an extremely busy place. Who gets

the assignment to go after John Doe is pretty much a matter of office economics

and personnel availability. Let’s say that Jim Dumdum gets the assignment.

The probability is very high that Jim Dumdum is young, relatively unfa-

miliar with the real world of legal eagleing, and that he’s immersed himself in

nothing but overly bloated legal language and definitions for 6 or 7 years, just

like a medical doctor has done in medical territory. Assistant Attorney Dum-

dum most likely has never heard of alternative/complementary medicine, but

does know all the State laws and regulations so far as he can find them in the

encyclopaedia of laws named after his state; i.e. [State] Code Annotated, called

[S]TAs.

A small group of men, the medical board, a quasi-state political-appointee

agency, has declared that John Doe has probably done wrong, and therefore, as

a defined function of the attorney general office, Jim Dumdum has been called

upon to defend his state’s citizens from alleged gross evil.

So far as Jim Dumdum is concerned, he must represent “the people” (all

the remainder of the people in your state, including those who think you’re a

really swell doctor) and he must attack you. (That’s the beauty of our legal

system! Everyone gets to attack!!)

So, at this point Dr. Doe might receive a letter from an official directing

him to come in and justify himself. Depending upon the state, he must report to

any one of a variety of official offices: State Medical Board, State defined Ad-

ministrative Review Board, Attorney General Office, or, perhaps, even before a

Court of Law.

Dr. Doe’s best strategy, of course, is to seek professional legal assistance.

But, not really knowing what’s to be charged, or even the nature of declarations

against him, he’s in poor condition to discriminate between attorneys -- State or

Federal -- and whether or not Constitutional rights are involved.

Most family neighborhood lawyers make their living in the nearest State

courts, and will almost invariably lean toward State courts or toward adminis-

trative law jurisdiction. (Note: Unless the coming fight at a lower court [or

administrative review] level -- John Doe’s counter-assertions -- includes consti-

tutional claims, such as violation of constitutional rights, higher state courts

will not review violation of constitutional rights claims, and John Doe will be

precluded at any further step from claims of violation of constitutional rights at

higher State Courts. However a claim in Federal Courts might still be permit-

ted.)

If rights assigned to Dr. Doe by the Federal Bill of Rights have been vio-

lated, or are believed to be violated by the State processes, then Federal Courts

should be the first and only recourse, although similar claims are permitted in

State courts, especially when State law includes similar rights.

[Although some States have reserved stronger rights to the people, some

weaker, and some about the same, it’s in Federal Courts where thousands of

Federal case histories -- legal guiding lights - abide, and are most easily under-

stood. And it’s the Federal judges who are most familiar with those cases.]

So, let’s say that the next State action is the coordinated frontal attack on

Dr. John Doe: (1) Distorted newspaper reports about Dr. John Doe, in efforts to

discredit and slander him (“poisoning” the judge or jury pool); (2) Ousting of

Dr. Doe from hospitals, based on innuendo and rumor; (3) Appearance of armed

government agents in the waiting room with announced intention of arresting

Dr. Doe or his personnel; (4) Collection of all the patients’ personal medical

files; (5) Ripping out of the hard drive from the good doctor’s computer; (6)

Searches thru drawers, offices and, yes, even outside garbage containers for

either evidence or objects that can be construed to be evidence.