CAMLAW: Complementary and Alternative Medicine Law Blog

Malpractice and CAM (Complementary and Alternative Medicine) Update

As few cases involving allegations of medical malpractice for use or complementary and alterantive medical (integrative) therapies result in reported judicial opinions, it helps to track claims, or better yet, learn via the 'grapevine' of current cases and upcoming litigation.

Recently I had calls from plaintiffs' attorneys involving the following scenarios:

Case 1
. Patient was followed by medical specialist for condition X. Medical specialist, who fancied himself an "integrative medicine" doctor, recommended herbal supplement Y. There were no adverse case reports in the literature, nothing to indicate any potential harm. This is contrast to a substance such as ephedra/Ma Huang for which cautions and bans have been issued. Nonetheless, after repeated intake, patient suffered disfiguring injury. Patient wishes to sue and wonders what claim he has.

Advice: proceed on two theories, namely, (a) therapy was outside standard of care, and (b) even if physician recommended therapy in good faith, following the evidence (and understanding there was not a single adverse case report), MD failed to provide adequate informed consent by neglecting to warn of potential risk both known and unknown (i.e., the possibility that serious harm might occur even if not yet documented in the medical literature).

Case 2: Similar to case, except that here patient initiated herbal therapy on her own and let treating physician know. Treating physician professed ignorance with regard to herbal therapy and neither approved nor discouraged use. Over time, patient suffered medical consequences, and now wishes to sue treating physician for failure to warn. Physician here is between rock and a hard place; strong informed consent practices and documentation of conversation in the medical record together with other risk management tools are recommended.

Case 3. Physician with successful specialty integrative care center finds herbal therapies help patients with chronic or denegerative conditions. Physician wants her center to go beyond compilation of evidence-based reviews and market dietary supplements. This step is full of liability dangers. Among other things, selling supplements may be unethical and can up the ante from malpractice to recklessness, a higher level of culpability potentially triggering punitive damages. See Charell v. Gonzales, a New York state case in which the court did exactly that.

Case 4. An elderly patient died using a particular relaxation therapy in a wellness center. The estate wishes to sue for negligence. It appears that one or more complementary care providers at the wellness center did not check for contraindications. This could raise issues of direct liability as well as vicarious liability on the part of the wellness center. Informed consent/failure to warn would likely also be triggered. In addition, as discussed in Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives, CAM providers have a duty to refer to MDs when conditions exceed their skill, training and expertise.

Could the center defend on the ground that it is "just" a "wellness," "holistic health" center and not a medical center? Doubtful. The center includes a medical director and advertises medical services. But even if the center succeeded in disclaiming its representation as offering medical care, there is also spa liability to consider. And legal boundaries in this emerging industry are presently amorphous. Given the center's commitment to the patient's overall health, and the patient's expectation that medical contraindications would be observed and raised, the center potentially could be liable (and justly so). No court has yet decided to give a "wellness center" a lower standard of care than a hospital, particularly when physicians are involved.

Cases are generalized to protect confidentiality. Please review our overall disclaimer. Law Offices of Michael H. Cohen provides expert testimony and other services to attorneys.

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COMPLEMENTARY & ALTERNATIVE MEDICINE LAW BLOG

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