CAMLAW: Complementary and Alternative Medicine Law Blog

Informed consent for a complementary and alternative medicine practice

Do you have a boilerplate informed consent for your chiropractic, acupuncture, massage thearpy, hypnotherapy, energy healing, or other complementary and alternative medicine practice? Or for a medical practice that includes CAM therapies?

Someone called the other day asking for such a boilerplate, informed consent form to help protect their practice against the risk of malpractice liability.

All in all, it is much better to have an informed consent than not to have one at all. The reason is that failure to document informed consent can lead to a claim that the patient was not sufficiently informed of risks and benefits of a therapeutic decision to make an intelligent choice. Failed informed consent is an alternative theory of malpractice liability to negligent care (failing to provide due care, i.e., the standard of care in the profession).

But boilerplate legal language does not provide sufficient protection. And it is naiive to believe that simply pulling a generic form out of the ethers will magically make a practice that is already at the borderland between acceptable and, to a skeptical medical and regulatory world, questionable, pass muster.

As a lawyer, I simply do not have a vending machine approach to the practice of law. I would also wave the red flag of caution to anyone who thinks that the legal profession can dispense vending machine solutions. There is cost-sensitivity and cost-effectiveness, and just plain silliness and magical thinking.

There are Internet sites and 1-800 numbers that will provide boilerplate, model informed consent forms, and those who want to figure it out on their can go ahead and take advantage of these resources. These resources can be useful--if you know what you are doing, and have a fairly discrete issue that can easily be solved by marking up a particular agreement.

This is what I do when I am in a legal area outside of my expertise and need advice for my personal affairs -- but even then, I know well enough when something is far out of my expertise, and I need to consult an expert. So I will go ahead and pay a tax lawyer, a patent lawyer, whatever the needed specialty may be.

Courts can be very picky about informed consent forms. I have even seen the font size mentioned, whether there were capital letters, and other such nuances. The point, though, is that the informed consent for simply documents that the conversation about risks and benefits of a given therapy has occurred. It is no panacea, and certainly no guarantee against liability. In my view, someone who is earning a living from a therapeutic practice but wants to use a vending machine approach to legal protection is taking a large and unwarranted risk. Informed consent is not the same as assumption of risk, and the form does not necessarily provide a defense to a malpractice claim based on negligent care; if poorly drafted, the form could leave a liability hole; and issues such as medical board and other professional discipline come to play irrespective of the form.

That is why it is important to have a full intake of one's diagnostic and therapeutic practices and of procedures from billing and coding for insurance (beware of health care insurance fraud) to flow of payments for anti-kickback concerns. The same care that goes into being a healer, the same precision, ought to go into legal risk management. There are no short cuts in either domain, and those who think it advantageous to cut corners will simply discover, as most of us do in the march toward wisdom, that ignorance at first may seem cheap but ultimately carries a price.
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COMPLEMENTARY & ALTERNATIVE MEDICINE LAW BLOG

Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173