New Wrongful Death Lawsuit Over Physician Inclusion of Alternative Medicine

A new lawsuit against a physician who gave intravenous injection of hydrogen peroxide to a patient with multiple sclerosis sheds new light on the emerging legal and regulatory framework governing complementary and alternative medical therapies.

The South Carolina case, reported in a New York Times article entitled, "Death Puts a Spotlight on a Doctor and Regulators," involves a civil lawsuit for wrongful death and potentially a criminal action for homicide.

To date there have been very few published judicial opinions concerning lawsuits involving use of complementary and alternative medical (CAM) therapies by physicians. (The major cases are described in Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives and other books, and in a summary of important court cases). Yet, my colleague David Studdert LLB of Harvard's School of Public Health predicted in a 1997 article on malpractice in CAM, published in JAMA, that as "claims consciousness" continued to increase among patients seeing providers of alternative therapies, so too would litigation. I have agreed with David's prediction, and argued for an across-the-board framework for assessing malpractice liability, whether the therapy is labeled "conventional" or "CAM,"

The Times article highlights the fact that the MD involved has not yet been subject to physician discipline by the state medical board, and goes on with quotations suggesting the legal system's inadequacy and inability to handle "the danger of an unorthodox therapy."

It may well be that the physician involved was negligent, or reckless, or engaged in professional misconduct. I am not a scientist and cannot discern whether the therapy he offered the patient who died was wholly unsupported by medical evidence or merely disfavored. In the latter case, the MD might well have a "respectable minority" defense. In any event, 'the jury is still out'--literally and figuratively.

The article seems to assume that the physician was negligent, and the state medical board guilty for not taking away his license. This assumption in fact violates the legal principle that stands as the bedrock for our system of justice, namely, "innocent until proven guilty."

"'He's selling hope to the hopeless, at a very high price,'" one quote in the article says. This is the same charge that has often been leveled against practitioners of alternative therapies. Again, it may be true; or it may just be rhetoric. A little assumption is a dangerous thing. The real danger, though, is prejudice, either for or against alternative medicine; either for or against a physician (now defendant) when one does not have the facts. Medicine is 'evidence-based,' so why should our legal judgments not also be?

In fact cases are decided based on the law and the evidence, and judges admonish jurors not to decide based on passion or prejudice. The quotes in the article suggest, among other things, that regulation of CAM therapies is inadequate, and that 'the bias is still tilted toward protecting the providers.' Many have argued just the reverse. A more balanced perspective suggests that there are numerous regulatory mechanisms in place to protect the public against dangerous providers; these include: (1) medical licensure; (2) scope of practice; (3) professional discipline; (4) malpractice; and (5) fraud. This extensive web of regulation for complementary and alternative medicine is designed to ferret out abuse, and enhance quality assurance among the professions, including medicine. These different areas of law can and probably will be applied to this case.

The MD who now faces a civil and potentially criminal investigation will no doubt suffer the consequences of negligence if, after trial by jury, negligence is found; and a legal judgment of negligence carries potentially stiff penalties, both monetary (on the civil side) and imprisonment (on the criminal side). Loss of licensure would probably swiftly follow.

In the meanwhile, it may be useful to step aside from rhetoric on either side of bias, and honor the maximum, 'judge not lest you be judged.'

As a postscript, one of the ironies highlighted in the article is a photo of the physician in front of his office, which has a large sign proclaiming: Longevity Physician. Irrespective of what may have happened to the patient in question, this kind of sign is a 'red flag' for concerns about claims and advertising. Health care providers need to take great care to avoid potentially false and misleading marketing. Had the MD-defendant been a bit more modest about the sign on his door (literally and figuratively), the emotional pitch of the case (and potentially the article) might be just a little more favorable. To the reporter's credit, the article does offer a quotation from the physician's attorney that: "'We have a nice man who is engaged in cutting-edge, outside-the-box, not-widely-accepted-by-the-medical-establishment practices for a woman who could not find relief from traditional medicine.'" The case will be instructive not only for the facts it brings out and the jury's verdict, but also for any language that may emanate from published judicial opinions concerning the outcome.