Liability Regarding Complementary and Alternative Medicine (Part V)

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

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

Until recently, case law related to the integration of complementary and alternative medicine (CAM) into common medicinal practice and the development of laws protecting parties involved has been relatively sparse. However, with a trend of solid interest in CAM from the general public in the past few decades, some key landmark cases have begun to pave the way for future litigation.

Charell v. Gonzalez and Schneider v. Rivici

In Charell v. Gonzalez, a physician used hair analysis and nutritional therapies to diagnose and treat a patient with cancer. Unfortunately, the cancer metastasized and the patient developed the severe adverse effects of blindness and back problems. The patient sued a) for negligence on the grounds that the doctor persuaded her to pursue the CAM treatments in lieu of conventional therapies, and b) for failure to adequately inform her of the conventional options available to her.

The doctor was found guilty of malpractice. Malpractice exists when a physician departs from a standard of accepted medical practice — in this case, the standard of informed consent — and consequently that departure is the direct cause of harm to the patient.

The court noted that, had the doctor adequately informed his patient as to the availability of conventional therapies, their efficacies and the risks associated with electing the CAM treatment, the patient might have made a different decision. And even if he didn’t, as long as the doctor obtained informed consent from his patient, he probably would have been protected from liability for the harm in question.

In its most specific context, this case speaks to a duty of care for doctors to advise their patients of the availability of allopathic treatment options when CAM therapies are recommended or proposed. This is obviously the opposite scenario to the focus of this article, the debate whether allopathic physicians should be required to disclose CAM treatment options before performing allopathic services. But at least it establishes, generally, that a doctor has the responsibility to adequately inform patients of alternative remedies available and appropriate, as set forth in Canterbury v. Spence.

However, the Charell case leaves two key questions unanswered. First, does obtaining informed consent prior to CAM treatment in fact indemnify a physician from liability for adverse effects as it does with allopathic medicine? Second, are doctors required to disclose the availability of CAM treatments in the same way that they are apparently required to do for conventional treatments under Charell?

Schneider v. Revici addressed the first of these two questions. In Schneider, the physician treated his patient for breast cancer using nutritional and other non-surgical procedures. Ultimately, the tumor spread, and the patient sued for malpractice.

The court found the doctor liable and initially awarded 50 percent of the estimated damages based on the theory of comparative negligence: the patient was found to be 50 percent responsible for choosing the CAM therapy in question.

However, on review the appellate court remanded the decision. The court opined that the trial court judge should have instructed the jury that, where an “express assumption of risk” is found, such assumption would constitute a complete defense to malpractice. The case was retried and ultimately, the physician was completely exonerated.

Defining the Difference between ‘Express’ and ‘Implied’ Assumption of Risk

In elaborating the assumption of risk issue, the appellate court cited New York State law, which is followed by a majority of jurisdictions. New York’s assumption of risk laws distinguishes between “express” assumption of risk and “implied” assumption of risk.

The former is manifested by a patient’s affirmative agreement in advance that the physician may proceed with treatment as previously discussed. The latter, “implied” assumption of risk, brings implicit consent through reasonable, voluntary, and competent actions by the patient in consenting to the treatment — for example, by willingly attending treatment appointments.

Under New York State law, an express assumption of risk acts as a complete defense to physician liability (as found in the Schneider case), whereas an implied assumption of risk opens the door for jury deliberation over comparative negligence.

Schneider v. Revici seemed to confirm what was foretold in Charell v. Gonzalez. Namely, when a physician adequately advises her patient of all necessary elements of informed consent outlined in Canterbury v. Spence, and when she subsequently receives consent for treatment — regardless of whether such treatment is allopathic or CAM and whether it deviates from reasonable standards of care — that doctor may successfully defend malpractice litigation. This supports the theory that the protections afforded under the doctrine of informed consent shall be applied to CAM with the same effect as with allopathic medicine.

The second question is whether doctors are required to disclose CAM options in the same way that they are required to disclose allopathic options. Another case, Moore v. Baker, seems to suggest an answer. In Moore, a physician recommended that a patient undergo a carotid endarterectomy. After receiving consent, he performed the procedure.

Subsequently, the patient learned of a type of CAM, EDTA chelation. This nonsurgical procedure involving pills, capsules or suppositories would have been an alternative to the allopathic treatment.

The doctor never informed his patient of this alternative during their discussions prior to treatment. So the patient sued for malpractice on the grounds that the doctor never obtained truly informed consent.

The court ultimately found in favor of the physician, but for different reasons than those one might expect. The hinge point in this case was not the disclosure of the treatment, but rather its credibility in the eyes of the mainstream medical community.

In the next part of this series, we’ll discuss why the court ruled against the patient and how it became an important precedent in the area of informed consent law.

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.