Liability Regarding Complementary and Alternative Medicine (Part III)

medical liability informed consent

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

This is the third article in a 10-part series discussing the duties of American medical professionals to disclose complementary and alternative medical treatments to patients.

In the previous two parts, we established that a good portion of the U.S. population has an interest in complementary and alternative medicine (CAM) practices. But a significant problem lies in the fact that the western medical industry is neither equipped for nor open to the integration of alternative therapies into mainstream practice.

The ideal fix for this, of course, would be to drastically change the paradigm. It would be necessary to:

1) Re-educate the entire community of western physicians in the arts and sciences of alternative medicine.

2) Retrofit medical facilities with the necessary equipment and tools so doctors could safely and effectively offer CAM treatments with the same confidence and accessibility that they would for allopathic treatments.

3) Redesign the body of medical law to promote and protect the rights of patients undergoing CAM therapies to the same degrees as protections afforded to patients in conventional medicine.

These are lofty goals. They are by no means impossible, but they are long-term visions of a medical industry many years ahead of our time. Such changes will be slow in coming, and not without the inherent hiccups that come with any major change.

Therefore, to maintain the interests of the general public in the more immediate term, it would be much more reasonable pragmatically and much more feasible logistically to expect that physicians who are not licensed practitioners of CAM would at least advise their patients of the availability and appropriateness of alternative treatments. That would allow those patients to freely seek such remedies.

The underlying problem with this proposition is that the current laws of informed consent have not clearly addressed whether allopathic physicians neither trained nor interested in CAM therapies are required to inform their patients of CAM options available and appropriate to treat their conditions. This lack of clear direction from our courts leaves patients disadvantaged by and vulnerable to potential nondisclosure from doctors. In turn, without well-defined rules, doctors may unknowingly subject themselves to liability for such nondisclosure.

Informed Consent Has Evolved Dramatically over Medical History

Informed consent is a topic that has evolved dramatically over the history of medicine. The first thing one needs to understand is that informed consent rests upon the doctrine of assumption of risk, a legal principle.

In the medical world, assumption of risk can work to exonerate a physician from liability for harm resulting from medical treatment wherever it is found that the patient in question:

1) clearly understood the risks associated with a particular medical procedure

2) competently and willingly elected to proceed with such treatments

Although courts sometimes vary in their interpretation of the rules governing assumption of risk, most jurisdictions follow the precedent established in Schneider v. Revici, which held that doctors may be partially or even fully indemnified of tort or malpractice liability based upon a patient’s assumption of the risks involved prior to treatment. However, this physicians’ defense is entirely dependent on the depth and quality of discussions with the patient beforehand and whether they were sufficient to allow a patient to give informed consent to the proposed action.

Informed Consent Requires Physicians to Disclose all Information to a Patient

In its most modern interpretation, the laws of informed consent require that attending physicians disclose all information necessary for competent patients to make well-informed decisions regarding their treatment choices. This, however, was not always the case.

As far back as ancient Greece in the late pre-Christian era, the issue of informing patients about the nature and concerns of their medical treatments has been a topic of debate. In those early times, medical professionals were more or less unanimous that disclosing anything to a patient that might instigate feelings of apprehension, fear, or mistrust in the procedures to be administered was untenable.

Consequently, dishonesty, deceit and manipulation were acceptable norms of practice. The overarching objective was to obtain patient confidence and obedience in undergoing whatever therapies were deemed appropriate by the doctors in question.

This practice continued for centuries in European and early American society. It was not until the 1800s that the idea of informing patients about the nature of their treatment was even proposed. Even then a consensus in the medical industry continued to endorse deception over the potentially adverse consequences of disclosing to patients the then often-depressing details of a medical prognosis.

The 20th Century Brought about a Movement for Change Requiring Full Disclosure

Finally, the 20th century brought about a movement for change, requiring full disclosure by medical practitioners. To enforce this requirement, courts adapted the English Common Law tort doctrines and applied them to medical practice.

So any actions taken by a doctor that was not agreed to by the patient in a court of law would be construed as assault and battery, unwanted or unpermitted physical contact. Case law since that major shift in the rules of informed consent has shaped and more carefully defined the rules for physicians and the rights of patients within the context of informed consent requirements.

One of the earliest and most important cases in this area, Schoendorff v. Society of New York Hospital, established the precedent that patients ought be given the right to actively participate in decisions regarding their healthcare. U.S. Supreme Court Justice Benjamin N. Cardozo wrote: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits a battery for which he is liable in damages.”

But this was just the beginning. In the next article in this series, we’ll look at how modern courts continued to expand upon these informed consent rules for medical professionals.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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