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Indiana Health Law Review


Which practices qualify as “medical” in nature? This question has important legal implications. Every state has laws prohibiting the “unauthorized practice of medicine.” Health insurance policies generally limit coverage to procedures that are “medically necessary.” And physicians can be prosecuted as drug traffickers if they prescribe controlled substances without a “legitimate medical purpose.” Each of these questions—and many others—hinge on how medicine is defined.

As with many common terms, we all have a general understanding of what medicine is and this heuristic suffices to carry us through our daily lives without complication. Yet when called on to produce a precise definition that captures all practices we think of as “medical,” while excluding those we do not, that task proves exceptionally challenging. This problem is further complicated by the fact that what qualifies as “medical” may vary across different contexts. Prescribing Botox to mitigate frown lines may qualify as a “medical” intervention for purposes of laws regulating doctors but may not qualify as “medically necessary” for purposes of insurance reimbursement.

Yet despite the difficulty of defining medicine and the weighty legal consequences that can hinge on these definitions, courts, regulators, and legal scholars have given little consideration to these challenges in the context of regulating physician prescribing. Instead, they have often relied on “commonsense” definitions that fail to grapple with the complexity of the issue. As a result, legal standards that govern prescribing are often unclear and inconsistently applied, leaving physicians without a clear understanding of which conduct they must avoid. Given multiple opportunities to resolve this issue definitively, the United States Supreme Court has repeatedly demurred, including most recently in its 2022 opinion in Ruan v. United States.


Originally published in Indiana Health Law Review. Copyright © by the Trustees of Indiana University.