How state-specific legal consensus can influence the course of a malpractice claim against a practitioner of alternative medicine
This is the second of a two-part series on medical malpractice in relation to complementary and alternative medicine. For the first part, click here.
In the previous article in this series, we discussed what constitutes a medical malpractice claim in general and how the concept of the standard of care is applied in the case of complementary and alternative medicine. It was mentioned that one reason for a malpractice lawsuit against a CAM doctor would be if they were to administer treatment that was inconsistent with the established standard within their field or if they were to perform services below this standard. But what happens if a practitioner of alternative medicine treats a problem that is arguably not suitable for a treatment with the methods of their field and a patient sustains damage as a result? Can a medical malpractice claim be successfully made in such case?
In many states, based on the position taken by the courts in similar legal disputes, doctors of alternative medicine are required to be able to determine whether or not a problem is treatable by the means established within their profession. If a failure to do so results in injury to the patient, this may be used as the basis for a malpractice claim. If for example, a chiropractor were to fail to recognize a herniated or bulging disc and proceeded to administer a chiropractic treatment which further aggravated the patient’s condition, he or she is likely to be found in breach of the duty to comply with the recognized standard of care. It is also worth noting that some states explicitly obligate alternative medicine practitioners to refer patients for standard medical treatment if they diagnose a condition that requires such treatment, while other states do not recognize this as a part of their established standard of care. In some cases, courts have even decreed that it would constitute a breach of the standard pertaining to certain fields of alternative medicine to give any kind of opinion on the necessity of treatment other than specific to that very practice, which excludes any kind of referral to a standard medicine doctor.
What is informed consent?
Another detail worth mentioning in the context of malpractice claims against practitioners of alternative medicine is that the chances of a successful lawsuit can often be offset by the principles of informed consent and the assumption of risk. If a CAM doctor discloses to a patient, potential risks an alternative treatment poses and the patient agrees to the treatment anyway, then it can be argued that, in the case of any damage or injuries, the patient cannot hold the practitioner liable. The help of an experienced attorney with previous experience in such cases would be needed to verify if the information about the risks inherent to the treatment given to the patient by the practitioner was sufficient for the patient to make an informed decision about the consent. A failure to disclose some key facts about potential dangers of the treatment can be used as a basis for a malpractice claim, although it must be noted that it does not guarantee a successful outcome.
Medical malpractice claims are notorious for being complex, time-consuming and often difficult to prove. In order to be able to make such claim successfully, the help of an attorney with previous experience in such cases will be essential. This is even more true with regard to malpractice claims against practitioners of alternative medicine. As demonstrated in the two articles in this series, the additional, CAM-specific issues that a plaintiff will have to face in order to bring this legal conundrum to a successful resolution will be related, but not exclusively confined, to:
- establishing the standard of care pertaining to the field of alternative medicine in question;
- showing how this standard was breached; and
- proving that the failure to comply with it was the cause of the damage or injuries sustained.
If a practitioner did not recognize that the patient’s condition was untreatable by the methods of his profession and yet administered the alternative treatment anyways, this almost invariably qualifies as a basis for a malpractice claim. Other situations that may merit such claim are, for example, a failure to diagnose a patient’s condition properly and a failure to refer a patient for a standard medical treatment. The specifics of this type of case, however, will depend on the established legal consensus in a given state. A doctor of alternative medicine is also required to inform a patient about all the risks inherent to the treatment and providing insufficient information in that regard can also lead to a malpractice claim. In any case, those who have sustained injuries or damage as a result of an alternative treatment that has gone awry and who want to seek compensation will need to demonstrate patience and persistence in pursuing these claims. It can be comforting to know, however, that there are experienced legal practitioners ready to help these victims each step of the way.