medical unlicensed-practice journalism
Can editorial bias be considered medical advice?
<p>In an issue where the scientific community is far from united, could an editorial bias in the media (stories and ads run vs censored or ignored) be considered medical advice and practicing medicine without a license?</p>
<p>(Legal definitions and precedents would be nice.  Subjective opinions, not so much.)</p>

<p>No. Practicing medicine involves providing medical advice or providing treatment particular to an individual person's situation.</p>

<h2>No, that is not Practicing Medicine</h2>
<p>Writing about  medical topics, or expressing opinions about such topics is not practicing medicine. No US state so defines it. This is true whether the writing is biased or objective, accurate or incorrect. And if any state did attempt to require a physician's license for such action, that law would be void as a violation of the First Amendment's &quot;Free Press&quot; clause.</p>
<p>The page <a href="https://www.criminaldefenselawyer.com/resources/practicing-medicine-without-a-license.htm" rel="nofollow noreferrer">&quot;Practicing Medicine Without a License&quot;</a> from Nolo states:</p>
<blockquote>
<p><strong>Practicing Medicine</strong></p>
<p>Each state has its own definition of what it means to practice medicine, though these definitions involved the same general type of activity. A person practices medicine whenever he or she attempts to diagnose a patient, treat medical conditions, prescribe medications or treatments, or perform surgery. The unauthorized practice of medicine also includes advertising your services as a physician, or holding yourself out to the public as a physician, doctor, surgeon, or someone licensed to practice medicine. If you actually perform medical treatments, it is not necessary for you to receive any kind of compensation to be convicted of this crime, nor do your actions have to result in harm to the patient.</p>
<p><strong>Exceptions</strong></p>
<p>There are some actions that are specifically excluded from the crime of practicing medicine without a license. For example, applying home remedies, offering advice, and <strong>writing about nutrition or medical conditions</strong> are not considered practicing medicine. Also, performing other types of healthcare related activities, such as acting as a pharmacist, nurse, or dentist is also not considered practicing medicine. [<em>emphasis added</em>]</p>
</blockquote>
<p>See <a href="https://cdn.mises.org/3_1_5_0.pdf" rel="nofollow noreferrer"><em>The Early Development of Medical
Licensing Laws in the United States,
1875-1900</em></a> by Ronald Hamowy (<em>Deportment of History, University of Alberta</em> (1978) gor nfo on teh original of laws requiring physicians to be licensed.</p>
<h2>Specific State laws</h2>
<p>Let us look at some of the actual state laws that define the practice of Medicine.</p>
<h3>Maryland</h3>
<p>Maryland Statutes, Health Occupations, <a href="https://law.justia.com/codes/maryland/2020/health-occupations/title-14/subtitle-1/section-14-101/" rel="nofollow noreferrer">Section 14-101</a> (o) reads:</p>
<blockquote>
<p>(o) (1)    “Practice medicine” means to engage, with or without compensation, in medical:</p>
<p>(o) (1) (i)    Diagnosis;</p>
<p>(o) (1) (ii)    Healing;</p>
<p>(o) (1) (iii)    Treatment; or</p>
<p>(o) (1) (iv)    Surgery.</p>
<p>(o) (2)    “Practice medicine” includes doing, undertaking, professing to do, and attempting any of the following:</p>
<p>(o) (2) (i) Diagnosing, healing, treating, preventing, prescribing for, or removing any physical, mental, or emotional ailment or supposed ailment of an individual:</p>
<ol>
<li>By physical, mental, emotional, or other process that is exercised or invoked by the practitioner, the patient, or both; or</li>
<li>By appliance, test, drug, operation, or treatment;</li>
</ol>
<p>(o) (2) (ii)    Ending of a human pregnancy; and</p>
<p>(o) (2) (iii)    Performing acupuncture as provided under § 14–504 of this title.</p>
<p>(o) (3)  “Practice medicine” does not include:</p>
<p>(o) (3) (i) Selling any nonprescription drug or medicine;</p>
<p>(o) (3) (ii)  Practicing as an optician; or</p>
<p>(o) (3)(iii) Performing a massage or other manipulation by hand, but by no other means.</p>
</blockquote>
<h2>New York</h2>
<p>New York Consolidated Laws, Education Law - <a href="https://codes.findlaw.com/ny/education-law/edn-sect-6512.html" rel="nofollow noreferrer">EDN § 6512</a> provides:</p>
<blockquote>
<ol>
<li>Anyone not authorized to practice under this title who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts, or who practices any profession as an exempt person during the time when his professional license is suspended, revoked or annulled, or who aids or abets an unlicensed person to practice a profession, or who fraudulently sells, files, furnishes, obtains, or who attempts fraudulently to sell, file, furnish or obtain any diploma, license, record or permit purporting to authorize the practice of a profession, shall be guilty of a class E felony.</li>
</ol>
<p>2. Anyone who knowingly aids or abets three or more unlicensed persons to practice a profession or employs or holds such unlicensed persons out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts, or who knowingly aids or abets three or more persons to practice any profession as exempt persons during the time when the professional licenses of such persons are suspended, revoked or annulled, shall be guilty of a class E felony.</p>
</blockquote>
<p>This covers all licensed professions in a single section, and so does not have the kind of detailed definition of &quot;Practice Medicine&quot; that the Maryland law does. But the case of <a href="https://law.justia.com/cases/new-york/court-of-appeals/2004/2004-07523.html" rel="nofollow noreferrer"><em>People v Santi</em> 2004 NY Slip Op 07523 {3 NY3d 234} October 21, 2004, NY Court of Appeals</a> discusses what this section applies to, holding:</p>
<blockquote>
<p>Education Law § 6512 (1) criminalizes the conduct of any individual who practices any of the enumerated professions in title VIII without authorization.</p>
<p>...</p>
<p>In interpreting the statute we are guided by a well-settled principle of statutory construction: courts normally accord statutes their plain meaning, but &quot;will not blindly apply the words of a statute to arrive at an unreasonable or absurd result&quot; (<em>Williams v Williams</em>, 23 NY2d 592, 599 [1969]; see also <em>Matter of Rouss</em>, 221 NY 81, 91 [1917]; <em>Holy Trinity Church v United States</em>, 143 US 457, 460 [1892]).{**3 NY3d at 243}</p>
<p>...</p>
<p>Title VIII has a clear regulatory purpose. Specifically, the statute's legislative introduction indicates that it &quot;provides for the regulation of the admission to and the practice of certain professions&quot; (Education Law § 6500). Indeed, it cannot be reasonably contested that the legislation attempts to provide for the safe interaction of the regulated professions and those individuals that would engage their services, namely, the public. Broadly stated, it is a statute clearly designed to promote the public's safety.</p>
</blockquote>
<p>The court held that &quot;the administration of anesthesia&quot; via an IV constituted &quot;he practice of medicine&quot; in this case.</p>
<h2>Ohio</h2>
<p><a href="https://law.justia.com/codes/ohio/2006/orc/jd_473141-9bc1.html" rel="nofollow noreferrer">Section 4731.41. Practice of medicine or surgery without certificate.</a> Off the Ohio Revised Code (formerly General Code section  12694) provides that:</p>
<blockquote>
<p>No person shall practice medicine and surgery, or any of its branches, without the appropriate certificate from the state medical board to engage in the practice. No person shall advertise or claim to the public to be a practitioner of medicine and surgery, or any of its branches, without a certificate from the board. No person shall open or conduct an office or other place for such practice without a certificate from the board. No person shall conduct an office in the name of some person who has a certificate to practice medicine and surgery, or any of its branches. No person shall practice medicine and surgery, or any of its branches, after the person's certificate has been revoked, or, if suspended, during the time of such suspension.</p>
</blockquote>
<p>Further, [section 4731.14.3] § 4731.143. Notice to patient of lack of medical malpractice insurance](<a href="https://law.justia.com/codes/ohio/2006/orc/jd_4731143-8aa7.html" rel="nofollow noreferrer">https://law.justia.com/codes/ohio/2006/orc/jd_4731143-8aa7.html</a>) provides that:</p>
<blockquote>
<p>(A)  Each person holding a valid certificate under this chapter authorizing the certificate holder to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, who is not covered by medical malpractice insurance shall provide a patient with written notice of the certificate holder's lack of that insurance coverage prior to providing nonemergency professional services to the patient. ...</p>
</blockquote>
<p>This makes it clear that when section  4731.41 mentions  &quot;practice medicine and surgery&quot; the law means actual medical services provided to actual patients, not news reporting on medical issues, nor repressing general opinions on medical topics.</p>
