Summary of Six Cases Addressing Physician Practice of Alternative Therapies

Below is a summary of six cases addressing physician discipline and/or medical malpractice for use of complementary and alternative medical (CAM) therapies.

This memorandum is styled for legal research & writing methods students. The brackets provide editorial commments and pointers.
Formatting in the original is omitted but can be found here: Download file

Cases Addressing Physician Practice of Alternative Therapies

[THESIS PARAGRAPH--lays out the organization of the paper. Paragraph moves from broad to narrow. Notice how each sentence logically follows the preceding one.] Physician negligence can give rise to either: (a) a disciplinary proceeding against the physician by the state medical board, or (b) a civil action by the patient for medical malpractice, or (c) both. [The first sentence was the broadest. Now define the claim.] In either a disciplinary proceeding or medical malpractice action, physician negligence is defined as: (i) a failure to follow the standard of care that (ii) causes the patient injury. [Cite the law for this proposition.] Charell v. Gonzales, 660 N.Y.S.2d 665 (N.Y. Sup. Ct. 1997). [Next sentence is your thesis for the whole paper.] In a series of cases involving physician use of alternative therapies (such as homeopathy and nutritional therapy) with their patients, courts have upheld both medical malpractice actions and disciplinary claims, based on the theory that such use of alternative therapies constitutes negligence. [You can use brief parentheticals here to be fancy. Use the full citation format the first time you cite a case. Organize by date, grouping by issue--disciplinary cases first.] In re Guess, 393 S.E.2d 833 (N.C. 1990) (discipline based on use of homeopathy); In re Metzler, 203 A.D. 2d 617 (N.Y. App. Div., 3d Dept, 1994) (discipline based on use of homeopathy); In re Gonzales, 648 N.Y.S.2d 827 (N.Y. App. Div., 3d Dept, 1996) (discipline based on nutritional therapy); Schneider v. Revici, 817 F.2d 987 (2d Cir. 1987) (malpractice action); Boyle v. Revici, 961 F.2d 1060 (2d Cir. 1991 (malpractice); Charell v. Gonzales, 660 N.Y.S.2d at 665 (malpractice). [note we have now used the short citation form for Charell]

[Now discuss the disciplinary cases. Start with strong transitional/topic sentence. This should organize the next paragraph, and, link to the preceding one.] In the disciplinary cases, courts have upheld medical board disciplinary action against physicians merely for using alternative therapies. Guess involved a physician who administered homeopathic remedies to his patients as a last resort. At the hearing, there was no evidence that any patient had been injured by Dr. Guess's homeopathic treatment, and indeed, patients sought to testify that they had benefited from the same. Dr. Guess argued that these factors should preclude discipline.

[This needs to be a new paragraph to break up the text with 'white space.' It goes on a bit about Guess, but the basis for the court's decision is important. The rationale was based on statutory interpretation--in this sense, the case is distinguishable from Meztler.] The North Carolina Supreme Court held that the plain language of the statute ("any departure" from accepted medical practice "irrespective of patient injury") authorized the Board to revoke Dr. Guess's license. Id. at 839. In addition, the court rejected the argument of Dr. Guess that the statute unconstitutionally invaded his and his patients' privacy rights by invading his right to select his method of practice and invading his patients' rights to their choice of treatments. Id. Among other things, the court noted that "the Board's decision does not deprive Guess of his privilege to practice medicine, it simply limits his methods of treating patients to those which conform to the acceptable and prevailing standards of medical practice in North Carolina." Id. Finally, the court held that the Board's authority to regulate the practice of medicine creates no unconstitutional monopoly. Id. at 840. Judge Fry, dissenting in Guess, argued that the statute should be interpreted according to its purpose, which was to safeguard the public, and that a competent physician such as Dr. Guess should not receive discipline for treatment that did not cause injury. [In this case, the dissent makes an important point that needs to be considered, since in our jurisdiction, we may be trying to persuade the court to follow the dissent.]

[Transitional comparison.] Like In re Guess, In re Metzler involved a physician who practiced homeopathy. Metzler, 203 A.D. 2d at 617. [Note the points of comparison and contrast.] Metzler is distinguishable from Guess in that while Dr. Guess practiced family medicine, and only used homeopathy as a last resort when conventional medicine had failed, Dr. Metzler practiced only homoeopathy, stated his belief that illness was "never incurable," and purported to offer homeopathy as primary care. Meztler, 203 A.D.2d at 618. Further, whereas in Guess there was no evidence that any of the physician's patients had suffered any injury from homeopathic treatment, one of Metzler's patients died from pneumocystic pneumonia and was suffering from AIDS. [These are important points distinguishing the two cases. Think about why you distinguish them--to show that the facts may have made a difference in the outcome.]

[New subtopic, new paragraph. Keep the paragraphs readable.] The court in Metzler also stated that "a patient's consent to or even insistence upon a certain treatment does not relieve a physician from the obligation of treating the patient with the usual standard of care." Meztler, 203 A.D. 2d at 619. [Avoid jargon such as "it is well-settled that."] The court approved the Board's holding Dr. Meztler to the "same standard of care to which all physicians in New York are held," as well as the Board's decision that "that there are no different standards for licensed physicians based on their philosophy, religion or personal approach to their calling." Id. at 618-9.

[Transitional comparison.] In re Gonzales, like Guess and Metzler, also involved physician use of alternative therapies, although Dr. Gonzales specialized in the area of nutritional therapy and typically treated patients with advanced and incurable cancer. Dr. Gonzales was charged with gross negligence for, among other things, "failing to correctly interpret the signs and symptoms of disease progression in all six patients." Gonzales, 648 N.Y.S. at 829. [The quotation is important, because this case is actually pointing out things the doc might have done wrong, as opposed to simply pointing out use of alternative therapies. After a while you develop a feel for which facts--and which legal issues in the case--merit highlighting.]

Dr. Gonzales argued that the Board's determination reflected "a bias against alternative medicine"--specifically, that his professional conduct was assessed according to the standards to which conventional practitioners are held, which are inconsistent or irrelevant to his therapy, especially in light of the fact that his patients fully consented to such nonconventional therapy." Id., at 888. The court, however, rejected this argument, holding that Dr. Gonzales would be subject to the "same standard of care to which all physicians in New York are held," a standard that included "basic scientific knowledge of the nature of disease and the disease process." Id. [Notice how important it is to tease out the rationale, and then to analyze it as part of your synthesis of the cases.]

[New subtopic, new paragraph. Keep the paragraphs readable.] Furthermore, the court reiterated the statement in Meztler that the patient's consent to alternative treatment did not "relieve" Dr. Gonzales "from the obligation of treating the patient with the usual standard of care." Id. [Now add your analysis.] This language seems to imply that including alternative therapies in itself constitutes a violation of the standard of care, setting up the physician for disciplinary action. In other words, the "standard of care" argument becomes circular, if "standard of care" refers only to those standards established by conventional medicine, and excludes standards of care from practices involving alternative therapies.

Dr. Gonzales essentially had made this argument in claiming that the Board was biased. The "bias" would mean that automatic equation of alternative care. On the other hand, the Board's position could be read to mean that substandard care--and not merely alternative care--is problematic. Specifically, the charges against Dr. Gonzales concerning inattention to basic disease signs, symptoms, and necessary treatment--if true--would suggest the kind of lack of basic attention to scientific method that could be construed as negligent. That is, if Dr. Gonzales truly ignored some 'medical red flags' and tried to use an 'alternative' approach to cover up these deficiencies, that would suggest a lack of due care. In other words, as the court put it, by failing to read these 'red flags,' Dr. Gonzales would have failed to exercise the case that any "reasonably prudent physician would exercise under the circumstances." Id., at 831. [That is why the facts of Gonzales matter.]

[Need a strong transition/topic sentence to signal the next topic. Remember that the large-scale organization proceeds by issue and sub-issue.] Like the disciplinary opinions, the courts in cases involving medical malpractice actions have tended to follow the principle that physicians using alternative therapies can be held negligent for failure to follow conventional standards of care. In Schneider v. Revici, 817 F.2d at 987, the Second Circuit allowed a medical malpractice claim against a physician who unsuccessfully treated the patient's breast cancer with nutritional therapy, after the patient had been advised by numerous doctors to undergo a biopsy and had refused to do so. [That's all we need to say about Schneider for now. Transition to next case.] Boyle similarly involved a wrongful death claim against Dr. Revici, this time for use of "urine monitoring, urinalyses and the ingestion of various mineral compounds that Dr. Revici claims retard and reduce the size of cancerous tumors." 961 F.2d at 1060. At trial, the parties stipulated that Dr. Revici's method of treating cancer was "legally negligent in that it did not conform to accepted medical standards;" the jury was asked to decide whether Dr. Revici's negligence as stipulated caused the decedent's injuries. Id. Likewise, Charell involved treatment by Dr. Gonzales of a patient for uterine cancer "by prescribing a special diet protocol;" the jury found that this was a "departure from good and accepted medical practice, which departure was a proximate cause of injuries." 660 N.Y.S.2d at 667. [The facts of these three cases are very similar, so we can dispense with them relatively quickly. The interesting wrinkles here have to do with the doctrine of assumption of risk.]

[transition/topic sentence] In each case, the court found that using an alternative therapy was sufficient ground for a negligence verdict. [now your analysis] In Charell, the court added that "it would seem that no practitioner of alternative medicine could prevail on such a question as the reference to the term "non-conventional" may well necessitate a finding that the doctor who practices such medicine deviates from "accepted" medical standards." Id. at 667. This dicta resembles the statement in the disciplinary cases [tying the point into the earlier discussion] that "all" physicians are held to the "same standard of care," whether they practice conventional or alternative medicine. [do you think this is good public policy or not?] This can create difficulty for the competent physician who wishes, with the consent of his or her patient, to try an alternative pathway when conventional medicine has failed.

[topic/transition] The other feature of Schneider, Boyle, and Revici worth noting is the emphasis on availability of assumption of risk as a defense to medical malpractice in cases involving use of alternative therapies. The Second Circuit in Schneider distinguished express from implied assumption of risk. [Notice how 2nd sentence logically follows the 1st.] Thus, "express" assumption of risk results from an "advance agreement that the defendant need not use reasonable care for the plaintiff's benefit." Schneider, 817 F.2d at 994. "Implied" assumption of risk, on the other hand, consists of "plaintiff's unreasonable and voluntary consent to the risk of harm from defendant's conduct with full understanding of the possible harm." Id. Express assumption of risk provides a complete defense, while implied assumption of risk is "subsumed" under a New York statute providing that the plaintiff's recovery would be "be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages." Id. at 994-6, citing N.Y.Civ.Prac.L.& R. 1411. In other words, implied assumption of risk is a partial defense, triggering an assessment of damages according to responsibility for the injury.

In upholding expression assumption of risk as a complete defense to medical malpractice, the court stated as its rationale:

We see no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment. While a patient should be encouraged to exercise care for his own safety, we believe that an informed decision to avoid surgery and conventional chemotherapy is within the patient's right "to determine what shall be done with his own body."

Id. at 996, quoting Schloendorff v. Society of the New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92 (1914). [This is important language and should be quoted in full. Note that usually, we quote selectively.] [transition/link to discussion of import of Boyle] In Boyle, the Second Circuit went further by holding that even if the patient has not signed a legal agreement assuming the risk, the jury can still determine from the facts that express assumption of risk has occurred. 961 F.2d at 1062. [you could choose to flesh this out in another sentence or two.]

In Charell, the New York court focused on implied rather than express assumption of risk. The court found implied assumption of risk in this case from the fact that:

plaintiff was a well-educated person who, together with her husband and daughter, did a significant amount of investigation regarding the treatment being offered by defendant and hence became quite knowledgeable on the subject, and that she sought to avoid the suffering that accompanied the chemotherapy/radiation regimen that she had witnessed when a relative had undertaken that treatment.

Charell, 660 N.Y.S.2d at 669. [Notice how these factors are important. We'll look for them the next time to see whether we fit the implied AOR defense. Now add your analysis] With information increasingly available online, the implied assumption of risk defense may well become more available for physicians, as patients become more and more sophisticated and knowledgeable concerning various treatment options.

[note - we did not discuss the covenant not to sue, but it probably should be added as it is another potentially available defense.]

[wrap up with insights] In sum, physicians offering their patients alternative therapies may have the benefit of express assumption of risk in jurisdictions that, following the approach in Schneider, allow this as a complete defense to medical malpractice. Boyle suggests that express assumption of risk need not be reduced to writing, though it is probably preferable to do so. If such a defense fails, the patient's knowledge of risks associated with alternative therapies, and conscious pursuit of such therapies nonetheless, may provide the physician an implied assumption of risk defense, triggering comparative negligence and damages apportioned by responsibility or fault. Physicians should be cautioned, however, that they may still be subject to discipline by state medical boards, given the emphasis in Metzler and Gonzales that patient consent to alternative treatment is irrelevant, and that 'one standard' of care applies to all medical practice.


[Note to attorney--Thank you for your memo. I will now circulate this to all our physician clients and attorneys in our health care practice.]