Medical malpractice claims are based on an established standard of care. But in a largely unstandardized branch of medicine, is it still possible to establish malpractice?
This is the first part of a two-article series on medical malpractice in relation to complementary and alternative medicine. For the second part, click here.
What kind of doctor?
“Renowned for his superior diagnostic skills which make his clinic one of the largest and most sought after in the U.S.” With this statement of considerable esteem, WPRO Rhode Island public radio’s website describes Dr. Tad, the station’s former healthcare expert, and a regular program host; or, to be more precise, used to describe him until recently. Now, a click on the “The Dr. Tad Show” tab redirects to a generic “Not Found” page, a change that is likely to have left regular WPRO radio listeners surprised. The viewers of The Rhode Show – a WPRI TV station’s lifestyle and entertainment program – might have shared that feeling when a couple of weeks ago Dr. Tad did not make his planned appearance on the program and was unexpectedly replaced by a staff member. These two developments are no doubt a result of a consent order for voluntary surrender of license issued in March by the Rhode Island Department of Health to Tadeusz A. Sztykowski in which he agrees to permanently surrender his Rhode Island license as a Doctor of Acupuncture and Oriental Medicine as well as to cease to “advise, treat, diagnose, prescribe, or suggest therapies”, alternative or otherwise. The sixteen-page document also mentions that Tadeusz Sztykowski has never held a license as a physician in the State of Rhode Island, even though – as can be gathered from other sources – he graduated from medical school in 1982, most likely in Poland, his country of origin.
Some Rhode Islanders weighed in on the controversy, as the golocalprov.com news website informs, making their voices heard through social media. The comments reveal largely mixed opinions about Sztykowski’s medical practice. Some praised and thanked “Dr. Tad”, claiming that he helped them or even cured them of conditions as serious as infertility, while other comments had definitely more vengeful undertones, with some calling the practitioner of acupuncture and Oriental medicine a “fraud”. It is important to note, however, that the consent order explicitly states that Sztykowski “neither admits nor denies” any misconduct. On the other hand, the order also compels him to “refrain from advertising or marketing that is false, deceptive, or misleading, or that is likely to deceive, defraud or harm the public”.
“Dr. Tad” was a practitioner of one of the health care methods that fall under the umbrella term “complementary and alternative medicine”, or CAM. Even though CAM, in the perception of many, still remains somewhere on the fringes of established healthcare practices, this ever-growing industry is already a multi-billion dollar business in the US, with Americans spending $30 billion a year on therapies such as acupuncture, chiropractic, or homeopathy, according to some reports. Other studies show that as much as a third of US citizens look for remedies outside of the scope of standard medical practices. From 2012 to 2017, the complementary and alternative medicine industry grew at the average rate of 4.0% a year and is likely to keep growing in the years to come.
As more practitioners offer CAM remedies and more people turn to them for help, the number of cases similar to the one of “Dr. Tad” can be expected to rise too. As mentioned above, in the case of Tadeusz Sztykowski, which offers a sneak-peak view into the often complex legal reality of alternative medicine, no charges were pressed and no violation of law was admitted to. What legal options, however, does a person have if they feel they have been wronged by an alternative medicine practitioner, or even that they have sustained damage to their health as a result of an alternative therapy? Can a medical malpractice claim be filed against a doctor of alternative medicine? If so, are the legal principles governing such lawsuits any different than malpractice claims against practitioners of standard medicine? This and the following article will explore the answers to these questions.∗
The anatomy of a malpractice claim
As suggested above, malpractice claims pertaining to practitioners of alternative medicine often prove to be legally complex. To understand why, a general knowledge of how a medical malpractice claim usually works is required. A malpractice lawsuit is basically a negligence claim – a legal proposition that there is a duty one person owes to another person and that this duty has been breached, resulting in harm, injury or damage. Thus, a doctor of medicine carries a duty to comply with a certain standard of care while treating his or her patients. The breach of this standard would mean, for example, that the doctor made a medical decision with regards to the treatment of the patient that other reasonable practitioners would not have made if given the same medical circumstances. In order for the malpractice claim to be valid, however, the plaintiff must be able to prove that the damage or injuries sustained were preventable and that they were caused by a failure to comply with the usual standard of care. This needs to be proven according to the principle of the preponderance of evidence, which means that the evidence overwhelmingly points to malpractice. It can already be seen from the above that not all bad medical outcomes will qualify as the basis for a malpractice claim. Even if a doctor makes a mistake, for example, if he were to administer a treatment based on a wrong diagnosis, it will not automatically be classified as malpractice. The mistake will always be judged against the established standard of care.
The standard of care in alternative medicine
The standard of care thus becomes a central issue for malpractice claims against alternative medicine practitioners. How so? Medical decisions made by CAM doctors cannot be judged against the same standard as methods used by the practitioners of standard medicine due to the very definition of alternative medicine. Otherwise, to administer alternative treatment could be viewed as malpractice in and of itself – after all, it is not common that a practitioner of standard medicine refers a patient to an alternative medicine doctor. Therefore, in the opinion of most courts that weighed in on the matter, CAM practitioners should be judged according to the standards of the field in which they are licensed. This means that an acupuncturist might be charged with medical malpractice if he or she administered a treatment inconsistent with, or outside of the scope of, the established standard of acupuncture, or if they simply made a mistake and injured a patient, for example by inserting a needle too deep and puncturing the patient’s lung.
What happens, however, if a CAM practitioner is presented with a patient whose condition potentially excludes an alternative treatment? Does the standard of care require the practitioner to have sufficient knowledge and abilities to recognize this? What if he or she accepts this person as a patient and administers CAM treatment anyway? In the next article in this series, we will consider what other intricacies of alternative medicine treatments can give rise to medical malpractice claims.