Medical malpractice cases can be challenging – and this is even more true with regards to claims against practitioners of alternative medicine
Alternative medicine – a growing trend
The US spends more money on health care than any other country in the world. According to a report by the Centers for Medicare & Medicaid Services, US health care expenditure increased by 5.8%, in 2015, reaching a staggering figure of $3.2 trillion, which translates into about $9,900 per person. Nevertheless, the amount of money spent on health care does not seem to always be reflected in the quality of the services received. For example, in the World Health Report released by the World Health Organization in the year 2000, the United States health care system quality ranked as the 37th in the world and there is little evidence of any substantial change since then. In addition, as was mentioned in last month’s post on medical malpractice, negligence and provider error with regard to procedures or medications are the third leading cause of death in the United States, with only heart disease and cancer claiming more lives each year.
These statistics are perhaps one of the reasons why a large percentage of Americans are increasingly turning to complementary and alternative medicine or CAM. This umbrella term describes a wide variety of health care methods and practices that remain outside of the scope of standard medicine, such as chiropractic, acupuncture, or homeopathy, to name just a few. Even though many of such therapies still lack rigorous scientific research that would back up the faith their enthusiasts have in their efficacy, as much as 30% of Americans regularly use CAM remedies, spending on them some $30 billion a year – and these numbers are likely to grow in the years to come.
Since virtually any kind of medical treatment, standard or alternative, involves a certain degree of risk, the more people turn to CAM, the greater the chance some will sustain damage as a result of undergoing an alternative medical procedure. Thus, the trend may have interesting legal consequences. Since many practitioners of alternative medicine are not physicians in the legal sense of the term, that is to say, they are not board-certified medical doctors, can a medical malpractice claim be filed against them if a patient sustains damage in the course of the treatment? If so, will such a claim be any different than a standard medical malpractice case? These questions will be the main focus of the present article.
How to define the standard of care
As mentioned in the last month’s article, a medical malpractice claim is essentially a negligence claim, where it is supposed that a physician was under a duty to the patient to treat them according to a certain standard of care, and because of breaching that standard, a damage to the patient’s health occurred. The standard of care is a legal term usually defined as “the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge that is available to the physician”. In other words, the standard can describe all the typical actions a reasonable doctor of a given specialty may take in any given medical circumstance. However, the standard of care that applies to physicians will not apply to the practitioners of alternative medicine. This legal consensus is based on the decisions of most courts that have issued sentences in cases related to malpractice involving CAM doctors. Thus, the principle currently adopted is that practitioners of alternative medicine are judged according to the standard of care recognized within the field in which they are licensed. This means that in a malpractice claim against, say, a chiropractor, an expert witness testimony will be needed to lay out before the jury what exactly constitutes the standard of care within this particular field and what practices are inconsistent with it.
Different interpretations in different states
Not in all circumstances, however, is it left to the sole discretion of a given field’s specialists to define whether a certain action complies with or compromises the standard of care. This is especially evident in cases where damage to a patient’s health may occur if a practitioner of alternative medicine fails to recognize that their patient may have a condition that qualifies as a contraindication to alternative treatment. Again, the established precedent from previous court cases is usually that doctors of alternative medicine need to be able to discern whether a particular condition qualifies for the treatment their field offers. Failure to do so and a resulting damage can be a basis for a malpractice claim. If a CAM practitioner determines that their patient is not a good candidate for the treatment they offer, different states have different laws regarding whether or not the practitioner is required to refer the patient for standard medical treatment or refrain from giving any medical opinion whatsoever. Some states explicitly oblige doctors of alternative medicine to do so; in this case, a failure to refer may also become a basis for a malpractice claim. In other states, the currently established precedent is that offering any kind of medical advice, including a referral to a physician, would constitute a breach of the standard of care.
Was the risk disclosed?
Another legal issue connected with complementary and alternative medicine is that of informed consent and assumption of risk. These two legal principles can be used by defendants in medical malpractice claims as forms of defense. Informed consent means that all the information of potential risks related to a given treatment was disclosed to a patient beforehand so in case of any complications and damage to the patient’s health, the health care provider cannot be held liable because the patient assumed the risk, for example by signing a certain document (express assumption of risk) or even by simply allowing the practitioner to proceed with the treatment (implied assumption of risk). If the risks were not properly laid out to the patient, this can also give a basis for a malpractice claim.
As mentioned in the previous month’s article, medical malpractice claims are notorious for being time-consuming, complicated, and challenging for the plaintiff. This may often prove to be even more true in the case of claims related to complementary and alternative medicine therapies. However, the bottom line is that such claims can be made and can be brought to a successful closure. As always, however, the help of an attorney experienced in these type of cases will be essential.