CAMLAW: Complementary and Alternative Medicine Law Blog

Is CAM Malpractice Per Se?

I worried about this question in Cohen MH. Malpractice considerations affecting the clinical integration of complementary and alternative medicine. Curr Prac of Med 1999;2:4:87-89. The reason was this: malpractice is defined as (1) deviation from the standard of care, which (2) causes the patient injury. "Alternative medicine" was also being defined as using that fall outside conventional medicine. Presto: alternative medicine equals malpractice. This was the conclusion of one judge in a New York case called Charell v. Gonzales.

I did a lot of thinking to help sort out this conundrum. One result was a suggestion for judges of possible standards for malpractice that could help the fields of CAM and integrative medicine evolve and grow without causing automatic liability. I put these suggestions in Beyond Complementary Medicine. In a nutshell, I believe courts should focus on the second element of malpractice--patient injury--and see whether reliance on the CAM therapy in fact caused the injury.

There are also potential defenses available such as assumption of risk, although they vary by state. A good guide is Cohen MH, Eisenberg DM. Potential physician malpractice liability associated with complementary/integrative medical therapies. Ann Intern Med; 2002;136:596-603, which I discuss in the next posting.

Remember that standards of care develop from professional journals, meetings, and peer discussions over time. Thus, legal standards will evolve as do medical standards; the more a CAM therapy is supported by medical evidence of safety and efficacy and/or generally accepted within the conventional medical community, the less likely liability for its use (so long as the patient is not dissuaded from necessary conventional medical monitoring and care). The converse is also true: the less evidence and acceptance the therapy, the more legally risky.

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