American Journal of Law & Medicine

Defining a standard of care in the practice of acupuncture.


In 1971, New York Times journalist James Reston watched as brain surgery was preformed in the former Red Cross Hospital in Shanghai with acupuncture as the only anesthesia. (1) "[Patients] were anesthetized merely by the insertion of very thin three-inch stainless steel needles into the body ... and they were not only perfectly conscious while their skulls were laid open before us but remarkably alert within half an hour after the operation." (2) One patient, a fifty-four-year-old man named Chuan Leao, had been suffering from epilepsy as a result of a large tumor in the frontal lobe of his brain. (3) "He seemed sensibly puzzled by being introduced to a couple of American strangers during his ordeal but was courteous and patient, and we listened to his comments while the tumor was removed and even watched him eat oranges slices and ask for more while the operation was going on." (4)

Reston also observed a major operation in which the right lung and one rib were removed from a twenty-four-year-old man named Chen Chien. (5) "In some ways, the operation on Chen Chien seemed even more astonishing than the brain surgery," wrote Reston. (6) Chen's only anesthetic was a single needle inserted into his right shoulder. (7) "He lay on his stomach with a vast gaping hole in his back, through which you could see the gasping of the remaining lung, but was wholly conscious through the ordeal, talked quietly and coherently and, like the epileptic patient, ate fruit while receiving blood transfusions." (8)

Reston's article was published around the time President Nixon announced plans to visit China. (9) For the first time in decades, America had gotten a glimpse of what was lying behind the red curtain. Acupuncture had an immediate impact in the United States. (10) Three decades later, the United States is still grappling with scientific explanations for this ancient practice, derived from a cosmological worldview completely foreign to Western philosophy and medicine. It is a practice so remarkable and seemingly effective that the world is willing to believe, even if it does not understand.

How does one evaluate a practice of healing that does not comport with common assumptions of modern medicine and continues to elude scientific explanation? How does one define a standard of care in acupuncture? The current law lies somewhere between Reston, the American stranger watching in amazement, and the calm Chuan Leao, laid out in complete trust, eating fruit while his brain is being operated on.

Reston foreshadowed some of the issues that the United States now faces in defining a standard of care for acupuncture. He stated, "It is very hard for a nonprofessional to sort all this out," since even Chinese doctors are divided in their theories of how acupuncture works. (11) Although acupuncture is widely practiced in America, it is still not fully understood. (12) The United States has instead been operating on nothing more than pragmatic evidence, devoid of theoretical justification. (13) The problem is that the American medical community will not accept a healing art without theoretical basis or scientific justification. (14) In response, state legislatures have refused to classify acupuncture as the practice of medicine. Thus, acupuncture has been relegated into the niche of alternative therapy, on the fringe of medicine. (15)

Regulation of and licensure in the practice of acupuncture is relatively new and, in some states, non-existent. Defining a standard of care has been a haphazard process, as states clumsily try to fit acupuncture into traditional standards of care in medical malpractice.

This Note discusses how the rapid growth of acupuncture in the United States has created a need to define a specialized standard of care in order for practitioners to defend against the likely increase in medical malpractice claims. Defining a standard of care is also a necessary step in the integration of acupuncture into modern medicine, and will help to facilitate uniform licensure and accreditation policies in this growing industry.

Part II of this Note defines acupuncture and discusses its current impact in the United States. Part III analyzes legal issues associated with defining a standard of care for acupuncture, including an examination of the medical malpractice claims that can arise from adverse events and the social stigma that can leave acupuncturists vulnerable to malpractice liability, as well as the insufficient availability of legal defenses to fend off these claims. Part III also discusses how popular demand in current health care systems may create a duty to recommend acupuncture, or create liability where there are negligent referrals for acupuncture treatment. Finally, Part III discusses how the difficulties in testing the efficacy of acupuncture further complicates the development of a clear standard of care and the integration of acupuncture into current health care systems.

Part IV recommends federal legislation that will allow the National Center for Complementary and Alternative Medicine to expand its research focused goals by setting national guidelines and recommendations for a standard of care in the practice of acupuncture, and by issuing guidelines for state licensing and regulation of acupuncture. By establishing a national model, which states can choose to adopt, the standard of care for acupuncture will look more like the standard that currently exists for modern medicine.



The traditional theory of how acupuncture works revolves around the Chinese concept of "qi". Qi can be defined as breath, energy, or vital force. (16) It is the dynamic force from which all objects and events are manifested and to which they return. (17) Qi flows through the body along pathways identified as meridians. (18) Internal disorders occur when the flow of energy is disrupted or blocked. (19) By manipulating acupuncture points with fine needles, an acupuncturist increases or decreases energy flow to rebalance the body's yin and yang. (20)

Acupuncture is the third oldest health care art, following faith healing and herbology. (21) The practice of acupuncture originated almost 5,000 years ago. (22) Several prehistoric mummies in Eurasia were discovered with well-preserved tattoos that overlap with well-known acupuncture points, indicating that these "Icemen" were familiar with a simple form of symptomatic acupuncture. (23) Acupuncture needles were originally made from bone, horn, or slivers of bamboo, gold, or silver. (24) The first known text on acupuncture, the Nei Jing Su Wen, or The Yellow Emperor's Classic of Internal Medicine, was written around 200 B.C.E. (25)


Acupuncture became popular in the United States only after President Nixon's 1972 visit to China. (26) Nixon's visit occurred shortly after James Reston's article was published in the New York Times. (27) The events had a serious impact on the media and the intellectual community. (28) In 1996, the Food and Drug Administration removed acupuncture needles from the "investigative" category and placed them in the category of "accepted medical instruments. …

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