Potential Grounds for Malpractice Liability in CAM

The table below summarizes some of the major grounds of potential legal claims with which clinicians, institutions, and associations should be concerned.

Table-- Major Grounds of Potential Liability in CAM

 Misdiagnosis
 Delay of medically necessary, effective conventional treatment
 Inadequate informed consent
 Patient abandonment
 Poor evidence of safety and/or efficacy for CAM therapy
 Vicarious liability for acts of agents
 Negligent referral to CAM practitioners
 Adverse herb-drug or conventional-CAM treatment interaction
 Breach of confidentiality and/or privacy
 False and misleading or deceptive claims

I want to thank Ronald Schouten, M.D., J.D., Associate Professor of Psychiatry at Harvard Medical School and Director of the Law and Psychiatry Service at Massachusetts General Hospital in Boston for collaboration in developing this analysis. We created this list for a book chapter we've written together entitled, "Legal Issues in Integration of Complementary Therapies Into Cardiology," to appear in Alternative Treatments in Cardiology.

Misdiagnosis refers to both a failure to diagnose a condition as well as inaccurate diagnosis. It can be related to the second claim, delay of medically necessary, effective conventional treatment, which is extensively explored in Cohen MH, Eisenberg DM. Potential physician malpractice liability associated with complementary/integrative medical therapies. Ann Intern Med; 2002;136:596-603 and discussed in this blog.

Understanding informed consent is a critical part of the therapeutic encounter (see Ernst EE, Cohen MH. Informed consent in complementary and alternative medicine. Arch Intern Med 2001;161:19:2288-2292).

Patient abandonment implicates ethical as well as legal duties, as patients should be referred rather than abandoned. (See Ethics in CAM: A Balancing Test.)

More information on the other potential sources of liability can be found in books or elsewhere on this blog under Malpractice and Risk Management.