Liability Regarding Complementary and Alternative Medicine (Part VII)

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

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

As discussed in previous parts, courts have established that physicians have a duty to disclose alternative treatments to their patients, but they have also left open for interpretation the standards by which such treatments might be measured.

To open the floodgates and create a black-and-white rule requiring all alternative methods to be discussed would create anarchy. There are countless forms of CAM practiced throughout the United States, each with its own purported benefits and risks; its own popularity within the consumer market; its own perceived credibility within the medical world; and its own history (or lack) of controlled testing and documented efficacy.

It is impractical to suggest that doctors should be privy to pertinent information on all conceivable CAM treatments. However, at the same time, certainly some CAM therapies have gained a caliber of rapport and statistical success such that their discussion should be required as a matter of fairness to patients.

The ruling in Moore v. Baker suggested exactly this. Therefore, the key is in establishing a standard that balances the interests on both sides of the doctor-patient relationship.

Although case law in the specific context of CAM disclosure is all but nonexistent, in looking to delineate the criteria that should be used for relevance in similar settings, courts have employed a standard of materiality. Under this test, the disclosure of information is deemed to be legally required if it is considered to be material to a reasonable person as one of the parties involved. The problem with this approach is that United States courts are currently split with regard to their opinions as to which party’s perspectives on materiality should prevail.

If Treatment Information Is Something a Reasonable Person Would Deem to Be Material, Disclosure Is Required

Half of our courts tend to side with the patient, following the lead of Justice Benjamin N. Cardozo in the Schoendorff v. Society of New York Hospital case. In this context, if the information in question is something that a reasonable person in the plaintiff’s position would deem to be material, then disclosure is required. This obviously affords the most protection for the rights of the patient, but with it comes a drawback. Patients do not possess the medical education and experience with which to make sound judgments regarding their well-being. This is why doctors exist in the first place.

As discussed in earlier parts, doctors are typically given a fair amount of discretion when deciding not to disclose information they feel might do more harm than good to a patient’s condition. Cardozo’s view, although designed nobly to serve the best interests of patients, effectively circumvents a doctor’s discretion to withhold information that might be harmful, by requiring disclosure based upon the patient’s perceptions of materiality.

This legal structure would naturally lead many, if not most, doctors to disclose more than they might otherwise to ensure that the balancing test satisfies a reasonable patient standard. However, this could have very negative consequences. For example, a doctor might normally refrain from disclosing the availability of acupuncture if she felt that the patient would pursue it and it would be ineffective or cause injury.

But if she practices in a jurisdiction that recognizes the patient’s perspective, she might disclose the CAM option to ensure that the patient’s standard of materiality is satisfied in the interest of her own protection. And if the patient then undergoes acupuncture and suffers adverse effects, this obviously would be a negative consequence that might have been avoided had the doctor been afforded the discretion to withhold information.

Nondisclosure of Alternative Treatments Might Be Lawful if They Are Not Material to the Patient’s Condition

But the other half of United States courts endorses the perspective of the physician. Under this standard, if a reasonable person in the position of the physician feels that certain information — for example, the disclosure of alternative treatments — might not be material to the procedure at hand, then nondisclosure would be lawful. This is clearly the approach that the court adopted in Moore v. Baker when it decided that an attendant physician who failed to disclose a CAM treatment option that was not sufficiently recognized by the mainstream medical community was not liable for informed consent violations.

This approach obviously maintains the discretion of physicians to decide what information is suitable and beneficial for their patients versus what might be harmful. However, this is also a double-edged sword. This perspective clearly affords the least amount of protection for patients and their awareness of all of the circumstances surrounding their medical care.

Our nation aspires to promote a medical industry that always puts the best interests of patients first. But as discussed in previous parts, doctors may be influenced by extraneous factors (greed, fear of liability, prejudice) that might influence their decision not to disclose certain information to a patient. And a court system that looks to the position of a reasonable physician for direction gives him very broad power to do so.

For example, a doctor might suspect that a patient might want to be informed of the alternative of yoga for certain skeletal/muscular conditions, as opposed to allopathic medicine. The doctor might simply have reason to believe that yoga would be equally or more effective as conventional treatment.

However, if the doctor simply doesn’t know enough about yoga to feel comfortable mentioning it\ or if the doctor does not want to lose the business of the patient, he might elect not to reveal the availability of such an option. And as long as the medical evidence on the efficacy of yoga is not so abundant and strong that yoga could be honestly characterized as “recognized and accepted” in the mainstream medical community, the doctor would be free to ignore genuine motivations of patient well-being and cater to selfish and/or corrupt agendas.

In the next part of this series, we’ll look at the potential role of clinical trials in resolving ambiguity about standards for mandated disclosure of medical options by physicians.

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.