Liability Regarding Complementary and Alternative Medicine (Part IV)
By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
This is the fourth 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 article, we discussed a few of the early court cases that set the precedent that doctors need to involve their patients in decisions regarding their care and also to explain all viable options so they could give informed consent for treatment. Since those early cases, court opinions have refined the laws of informed consent and more specifically, the elements entailed within such an exchange.
Courts Have Addressed Patient Competency and Right to Refuse Treatment
Courts have, for example, addressed the need for competency of the patient. They have established that patients must be of sound mental capacity to understand and appreciate the information provided to them regarding medical procedures they may be considering.
Courts have also deliberated over the patient’s right to refuse treatment, holding that physicians must respect patients’ wishes who elect not to receive medical treatment, even in the face of fatal consequences. This rule holds true regardless of whether the patient’s decision to decline treatment is based on religious beliefs or other motivations that are still protected under federal constitutional rights.
Courts and the Medical Treatment of Minors
Additionally, courts have established rules regarding minors and parental guardianship. Under our common law, parents may not prohibit doctors from administering life-saving treatments to their children for the sake of religious martyrdom. Where appropriate, legal guardians will be appointed to make decisions on behalf of a child for their care.
The line between childhood and independent adulthood is still the subject of much debate. While courts typically follow the age of legal independence at 18, at least one court has established that persons age 14 or older have the necessary capacity to make treatment decisions for themselves.
Canterbury v. Spence Defined What Could Be Disclosed to a Patient
However, most relevant to the topic of this series, one key case spoke specifically to the material content of what a physician is required to disclose to satisfy the doctrine of informed consent and the elements thus established that are obviously pivotal to the controversy regarding disclosure of CAM options to patients. The case in question, Canterbury v. Spence, involved a chiropractor who failed to disclose to a patient considering a type of spinal treatment the unlikely but serious risk of paralysis.
Following the consent and treatment by the chiropractor, the patient did suffer paralysis and sued. The doctor was found negligent for failure to disclose the risk. In this case, the court went a step further and established six elements that comprise the minimum mandatory information that doctors must disclose to their patients:
1. As applicable, the patient must be aware of and consent to any and all diagnostic procedures necessary for the doctor to assess the condition.
2. After such diagnostic procedures, the patient must be made aware of the diagnosis.
3. The physician must explain the proposed/recommended treatment in a way that the patient understands.
4. The patient must be informed of any risks associated with the proposed treatment, including those that are likely/foreseeable and minor as well as those that are unlikely/unforeseeable but serious.
5. The patient must be informed of all alternative treatments available.
6. The expected results and their relative probability should be discussed with the patient in sufficient detail.
Obviously, the most pertinent of these six elements to the subject is the requirement that a physician disclose to his patient “all alternative treatments available.” Adhering strictly to the plain language of the court’s opinion here would suggest that physicians should be required to disclose all applicable CAM in every instance of informed consent. But the rule as it has been applied is not so black and white.
Physicians May Use Discretion If Informing a Patient Would Cause More Harm
To convolute what little clarity has been established regarding informed consent, doctors are also privileged with some discretion to intentionally withhold any information that they genuinely feel would do more harm than good for a patient.
For example, if a patient suffers from anxiety, depression, high blood pressure and a weak heart, a doctor might suspect that informing the patient of a dramatically worsening prognosis would likely only exacerbate the problem. As such, the physician has the authority to omit disclosure of such information if she believes in good faith that it is in the best interest of her patient.
This deferral of judgment by the courts serves as a double-edge sword for medical professionals. On one hand, it creates a fine line that doctors must walk between ensuring adequate disclosure and avoiding unjustifiably harmful disclosure.
However, on the other hand, this exception provides doctors with a fair amount of latitude to defend against claims of insufficient disclosure for failure to inform a patient of available and appropriate CAM treatments.
A doctor may choose not to disclose such alternatives — and courts have in many cases upheld the legality of such decisions — if in her professional discretion she is not well-educated enough about a particular CAM treatment to feel comfortable discussing it, lest such disclosure is misinterpreted as endorsement. A doctor may also choose not to disclose alternatives if she feels that a particular CAM treatment is not appropriate for her patient or if she is concerned that the CAM in question would be likely to do more harm than good.
Physicians may be motivated by a great many factors to make these types of decisions. In an ideal world, the prevailing prerogative would always be to ensure the very best care for patients. And this may indeed be the case in many instances.
But realistically, it just doesn’t happen with absolute consistency. The inherent problem is that doctors are generally entrusted with broad discretion regarding the treatment of their patients.
And sadly, even the purest of souls can be distracted or corrupted by ulterior motives. With that said, it is the duty of our legal system to establish a method of policing the accountability and integrity of the medical industry such that rules and expectations are clearly defined and abuse of authority is not without consequences.
In the next part of this series, we’ll look at the body of law to date that has attempted to build a framework for maintaining fair and just conduct involving informed consent interactions and the disclosure of CAM options to patients.
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.
