CAMLAW: Complementary and Alternative Medicine Law Blog : Complementary, Alternative, & Integrative Medicine Law, Regulation, Ethics & Policy (Alternative and Complementary Medicine, Medical Spa Information, Holistic Health Attorney, and Legal Resources)

Regarding the intersection of complementary and alternative medicine (CAM) and conventional modern medicine, Michael H. Cohen was quoted on the legal issues. To quote from the article, available at www.appeurology.com:

"The field is growing and interest is growing," said Michael H. Cohen, JD, MBA, assistant [clinical] professor of medicine at Harvard Medical School, a principal in his own law firm, and author of [4] books on the legal implications of CAM.

"The fact that there are now 29 academic medical centers with integrative medicine programs tells you that this is an expanding phenomenon and that there are credible people in legitimate medical centers," he continued. "Even the diehards who still say this is all bunk are being forced to confront these issues, because if patients are using these therapies, then a responsible clinician has to know how to converse intelligently, dispassionately, neutrally, and in a way that is mindful of legal and ethical obligations."

In terms of practical guidance for the clinician, a starting point, according to Cohen, is the test for informed consent in conventional medicine: would a reasonable patient, in a similar situation, find the information regarding the complementary and alternative therapy to be material to the decision to use or forgo that therapy?

"My position has been that the same principles from health law that apply to conventional medicine can be applied across the board--whether you label a therapy conventional or complementary," said Cohen. "So the obligation of informed consent is the obligation to disclose and discuss with patients all material treatment possibilities."

What if a physician doesn't know about the alternatives? "Ignorance is no excuse," Cohen said. "To disclose and discuss all material treatment alternatives--now what's material? States interpret that differently. Some states say 'material' is what a reasonable MD in that position would consider significant, and half of the states say that it is what a reasonable patient would consider significant."

Is there room for argument? "There's room for argument on what is a reasonable physician," Cohen responded. "Certainly, if your patient is taking an herb or dietary supplement and you do not inquire about it, I would say there is arguable failure to do due diligence there. The ostrich approach is probably not to be recommended," he said.