Liability Regarding Complementary and Alternative Medicine (Part VI)
By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
This is the sixth article in a 10-part series discussing the duties of American medical professionals to disclose complementary and alternative medical treatments to patients.
In the last part, we discussed the Moore v. Baker case, in which a patient sued her doctor because he failed to disclose a CAM treatment option prior to her undergoing allopathic treatment. The court found in favor of the doctor, but interestingly, it wasn’t because disclosures of alternative medicines are never required.
The parties did not dispute the fact that the availability of EDTA chelation was not disclosed prior to commencement of treatment. However, the court supported their finding by stating that “the plaintiff failed to show that reasonably prudent physicians generally recognized and accepted the treatment (EDTA chelation) as doing more good than harm….”
On appeal, the reviewing court affirmed, echoing that “the mainstream medical community did not recognize the claimed alternative as an effective therapy [for the condition in question]….” In doing so, the court seemed to suggest that, had medical evidence been more favorable toward the treatment in question, the verdict might have been different. The court did not expound upon what standard might be applied to weigh the sufficiency of the medical evidence, or even more basically, what such “evidence” might consist of.
However, in this case the court seemed to look to the judgment of the attendant physician, and to protect a doctor’s discretionary privilege not to disclose information that he feels might not be in the best interest of his patient (a concept discussed in previous parts) as long as the doctor’s judgment aligns with that of the mainstream medical community.
Moore v. Baker and Its Effect on Informed Consent
Analyzing Moore v. Baker in the wake of Charell v. Gonzalez and Schneider v. Revici, it is reasonable to extrapolate from this limited case law a few key elements of the relationship between informed consent and the integration of CAM therapies into modern American medical practice.
First, in both allopathic and alternative treatment situations, physicians can be held legally accountable for adverse results of treatment that is performed without first obtaining informed consent.
Second, in both allopathic and alternative treatment situations, when physicians do satisfy the legal requirements of disclosure and obtain informed consent, such consent, viewed under the assumption of risk doctrine, shall serve as at least a partial — and possibly complete — defense to malpractice liability.
Third, physicians who cause injury through CAM treatment without first disclosing the availability of allopathic alternatives may be subject to malpractice liability for failure to obtain informed consent.
It is also reasonable to infer from the Moore case that a set of circumstances might exist that could make the reverse true as well — such that a doctor who causes injury through allopathic treatment would be liable for malpractice if CAM alternatives were not previously discussed. It appears from the Moore opinion that the contingent factor lies in the consensus of credibility or acceptance within the medical community of the non-disclosed alternative in question. But courts have not yet elaborated on how such a factor might be measured.
Recall that this article series set out to examine whether physicians should have a legal responsibility, within the context of the doctor/patient dialogue establishing informed consent, to disclose CAM treatments and their risks/benefits as alternative options to conventional treatments under consideration.
Having discussed the history and modern prevalence of CAM in Western society, the development of informed consent law in the American justice system, and the limited common law addressing the integration of CAM into an industry and legal system designed around allopathic medicine, we can attempt to answer this question.
Courts Have Yet to Establish Guidelines Determining Whether a CAM Therapy Is Worthy of Disclosure
The consistent demand from the public for alternative medicines, coupled with the decisions of our courts, would suggest that physicians should be accountable to their patients for the disclosure of some CAM therapies that may be available and appropriate as an alternative to conventional medicine. Moore v. Baker, most notably, has paved the road for such a requirement. Courts simply have yet to establish the guidelines determining whether a particular treatment is worthy of disclosure.
This idea is not without serious implications. If doctors are to be held accountable for discussing CAM alternatives with their patients, this implies that doctors must be sufficiently knowledgeable about these treatments to sufficiently advise their patients as to the risks and benefits, and to afford them their legal right to make an informed decision.
For the majority of physicians who are not well-educated on CAM practices, this means a back-to-school prerogative. However, the intensity and duration of required study is dependent on many factors, including the volume of CAM treatments that doctors must be familiar with and the degree to which they must understand the practice. These are questions that our courts will need to address by establishing standards of merit for CAM treatments that warrant disclosure to patients.
At Its Core, the Medical Industry is a For-Profit Business
Another concern is that of fiscal interest. At its core, the medical industry is a for-profit business that relies on revenue to pay overhead expenses and ensure the livelihoods of doctors and staff. Therefore, requiring doctors — who generally are not CAM practitioners — to disclose the availability of CAM treatments to their patients could be viewed as tantamount to insisting that physicians endorse their competitors. If our courts were to insist that Ford Motor Company disclose the availability, benefits, and risks of purchasing a Dodge, Chevrolet, or Toyota to its potential customers before they buy a Ford, one can imagine the public reaction.
Obviously, this analogy lacks the degree of seriousness involved in many medical treatment decisions, but it demonstrates the business interests at stake here. That is especially true in circumstances where CAM alternatives pose equivalent risks/benefits to that of conventional treatment, requiring doctors to disclose information about CAM options could well lead to reductions in business at doctor’s offices and hospitals. It’s also worth noting that CAM options also tend to be far less expensive than conventional medical treatment, especially for patients without healthcare insurance.
However, despite this business concern, it is important to keep in mind that all doctors take the Hippocratic oath upon receiving their licenses; that the oath requires the ethical practice of medicine to the highest standard, placing the well-being of the patient above all other conflicting interests.
Courts typically hold such a noble objective in higher regard than that of fiduciary duties. So it would stand to reason that — provided the magnitude of the concern is not so great that it threatens the collapse of our medical industry — a decline in business should take a backseat to the pursuit of a more honest and effective healthcare system.
Having established that a duty should and probably would exist for doctors to disclose the availability of certain CAM treatments to their patients, the key remaining variable is by what standard a particular alternative treatment should be measured to prove or disprove the necessity of its disclosure in the informed consent process. We’ll discuss this in the next part.
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.