While experimental research involving humans is subject to federal regulations, the use of innovative therapy is not. There is presently no regulation existing which prohibits or restricts the use of innovative therapies. If every innovative therapy needed prior institutional review board approval, an impossible case load would be created and needed therapies would be delayed to the detriment of the patient. It is for the individual physician to determine whether the risks of a certain therapy are too great for the patient. This decision is to be made in light of alternative therapies and upon review of all relevant studies and literature.

There is substantial objective evidence that EDTA chelation therapy is beneficial in the treatment of occlusive arterial disease as well as other diseases. Physicians using EDTA chelation therapy have determined that it is a safe and effective alternative to bypass surgery and other treatments, as demonstrated by the results from independent studies relating to blood flow.

An excellent composite of numerous studies dealing with chelation therapy is EDTA Chelation Therapy: A Retrospective Study of 2,870 Patients, found in the Text.¹¹ The authors here chronicle the successful treatment of thousands of patients with chelation therapy. In their conclusion they state "the results of this retrospective analysis suggest that chelation therapy with disodium magnesium EDTA was useful in the therapy of several thousand patients with chronic degenerative, especially cardiovascular, diseases."

Section II of the Text contains a series of clinical studies and analyses of other clinical studies that are original publications or republications, all of which are strongly supportive of chelation therapy.¹² Clinical studies, scientifically conducted by licensed physicians, must naturally be respected and relied upon in a pioneering area of treatment. It is ACAM's position that the efficacy of chelation therapy is supported better by clinical studies than even bypass surgery.

Restriction to FDA Package Insert Guidelines is Inappropriate
EDTA was originally approved by the FDA in July 1953 under a version of the Federal Food, Drug and Cosmetic Act which required that the drug be shown "safe", i.e., that the benefits outweigh the risks. In 1962, the Act was amended so that any new drugs must be proven both safe and effective before they could be introduced into interstate commerce. The purpose behind the Act is to keep misbranded drugs out of the channels of interstate commerce. United States v. Evers, 643 F.2d 1043 (5th Cir. 1981). It was clearly not intended to regulate the practice of medicine and was drafted so that nothing in the statute or the regulations thereunder would prevent a physician from prescribing a drug for a purpose for which it had not been specifically approved. Id, at 1048. An unequivocal statement of the Act's policy of noninterference with the discretion of a treating physician was provided by the FDA itself:

Once [an approved] new drug is in a local pharmacy after interstate shipment, the physician may, as part of the practice of medicine, lawfully prescribe a different dosage for his patient, or may otherwise vary the condition for use from those approved in the package insert, without informing or obtaining the approval of the Food and Drug Administration. This interpretation of the Act is consistent with the Congressional intent as indicated in the legislative history of the 1938 Act and the Drug Amendments of 1962. Throughout the debate leading to the enactment, there were repeated statements that Congress did not intend the Food and Drug Administration to interfere with medical practice and references to the understanding that the bill did not purport or regulate the practice of medicine as between the physician and the patient. Congress recognized a patient's right to seek civil damages in the Courts if there should be evidence of malpractice, and declined to provide any legislative restrictions upon the medical profession.

United States v. Evers, supra, 643 F.2d at 1048, quoting 37 Fed. Reg. 16503 (1972).

The Alabama District Court explained a physician's freedom to utilize drugs in a manner not set forth upon the package insert as follows:

It is well-recognized that a package insert may not contain the most up-to-date information about a drug and the physician must be free to use the drug for an indication not in the package insert when such usage is part of the practice of medicine and for the benefit of the patient. Hopefully, the physician would welcome a well documented package insert because he finds it useful because the information in it is supported by substantial documented evidence. However, the physician can ascertain from medical literature and from medical meetings new and interesting proposed uses for drugs marketed under package inserts not including the new proposed usages. The package insert's most important educational value derives from the fact that it is a well reviewed, authoritative document. New uses for drugs are often discovered, reported in medical journals and at medical meetings, and subsequently may be widely used by the medical profession. But the Federal Drug Administration does not permit the package insert to be amended to include such uses unless the manufacturer submits convincing evidence to support the change. The manufacturer may not have sufficient commercial interest or financial wherewithal to warrant following the necessary procedures to obtain FDA approval for the additional use of the drug. When physicians go beyond the directions given in the package insert, it does not mean that they are acting illegally or unethically and Congress did not intend to empower the FDA to interfere with medical practice by limiting the ability of physicians to prescribe according to their best judgment (emphasis added).

The drug-package insert only sets up guidelines, not parameters, for the use of medication. Many drugs are commonly used in a way not specifically listed on the drug enclosure. It is the physician, not the insert, that decides upon the method of treatment, for it is the physician and not the FDA who is treating the patient. The inserts are meant to impart information, not restrict the practice of medicine by those qualified to practice.

Dr. John D. Archer of the American Medical Association, in a JAMA editorial, makes a similar observation:

The FDA cannot approve or disapprove of how a legally marketed drug is used by a physician in his practice. The agency approves of what a manufacturer may recommend about uses in its labeling (package insert) and advertising. Failure to recognize this distinction can have various harmful results. The FDA Does Not Approve Uses of Drugs, JAMA, August 24:31, 1984, Vol. 252, No. 8.

Furthermore, the Forward to the Physicians Desk Reference states in pertinent part as follows:

The FDA has also announced that the FD & C Act "does not, however, limit the manner in which a physician may use an approved drug. Once a product has been approved for marketing, a physician may prescribe it for uses or in treatment regimens or patient populations that are not included in approved labeling." Thus, the FDA states also that "accepted medical practice" often includes drug use that is not reflected in approved drug labeling. Physicians Desk Reference, 46th Ed., Medical Economics Company, 1992.

Constitutional Considerations in Restricting Choice in Medical Treatments

The Right of Privacy
Without question, the doctor-patient relationship has evolved in recent history from a state of strong paternalism to the era of self-determination largely existent today. At one time, doctors commanded and decided virtually all treatment options for a patient, with no obligation to consider the patient's values or decisions. The assumption existed that the physician unequivocally knew what was best for his or her patient and that the physician's decisions on the medical benefits or potential harms of a given treatment were dispositive factors in making treatment decisions. In recent history, however, paternalism has given way to an era of patient self-determination as consumers have become aware of treatment alternatives and the fact that different doctors favor different approaches, as well as the potentially profound effects that a treatment decision may involve.

Patients are increasingly asserting their right to be intimately involved in the decision-making process. As stated by J. Cardozo in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914), "every human being of adult years and sound mind has a right to determine what shall be done with his own body." Through its adoption of the doctrine of informed consent, the judicial system has embraced the trend towards respecting the personal convictions and values of the individual. This fact was recited as a truism by the Court in Andrews v. Ballard, 498 F. Supp. 1038, 1048, which stated:

[I]t is the inalienable nature of the right to decide to obtain or reject medical treatment, which forms the very basis of the requirement, enforced throughout America, that medical practitioners obtain their patients' informed consent prior to administering treatment.

It is now well settled that American law generally protects the patient's right to choose among licensed practitioners to treat illnesses and, correspondingly, the right of licensed practitioners to determine within the scope of their licenses the appropriate treatment. In the early case of Union Pacific Ry. v. Botsford, 141 U.S. 250, 251 (1891), the Supreme Court recognized the right of the individual to control his own body in stating:

No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

It has subsequently been held, as a matter not only of state common law but also of Federal constitutional law, that the special nature of the doctor-patient relationship precludes unjustifiable State intrusion with patients' rights to decide independently, with the advice of a physician, to obtain or reject medical treatment. Roe v. Wade, 410 U.S. 113 (1973). See also, Planned Parenthood v. Casey, 112 S.Ct. 2791, 2806 (1992), which provides:

It is settled now . . . that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, as well as bodily integrity (citations omitted; emphasis added).

This judicial maxim derives from the Due Process Clause of the Fourteenth Amendment, which incorporates most of the Bill of Rights against the States. Id. at 2804.

It is firmly established that the First Amendment has a penumbra where privacy is protected from governmental intrusion. Griswold v. Connecticut, 381 U.S. 479, 483 (1965). In Griswold, the Court held that the right to privacy was "no less important than any other right carefully and particularly reserved to the people" and that "a government purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly, and thereby invade the areas of protected freedoms." Id. at 485.