Here’s a brief summary and analysis of two important cases concerning claims of CAM malpractice: Charell v. Gonzales, and Schneider v. Revici.
In Charell v. Gonzales, a physician used hair analysis and nutritional care to diagnose and treat a cancer patient. The jury found that the physician had departed from accepted medical practice, which departure caused the patient injury. In denying the physician’s motion to set aside the verdict, the court stated that “no practitioner of alternative medicine could prevail … as … the term ‘non-conventional’ may well necessitate a finding that the doctor who practices such medicine deviates from ‘accepted’ medical standards.”
This view is hardly unique: courts historically have treated nonbiomedical therapies as suspect in cases where fraud or lack of due care has not been proven. Since using a complementary and alternative therapy invariably deviates from the standard of care, physicians cannot undertake a responsible, measured integration of such therapies in clinical practice without risking malpractice exposure. The definitional conundrum leaves the physician, who uses complementary and alternative medicine but lacks support through consensus standards, at risk of liability irrespective of any actual lack of due care in selecting or utilizing the nonconventional treatment.
The second leading case is Schneider v. Revici, in which the patient sought nonsurgical treatment for breast cancer. She signed a detailed consent form releasing Dr. Revici from liability. Following the treatment, the tumor spread. The jury found Dr. Revici liable for malpractice but halved the award, finding the patient fifty percent comparatively negligent. The U.S. Court of Appeals for the Second Circuit, reversing, held that the trial judge should have instructed the jury that express assumption of risk was a complete defense to malpractice.
The court distinguished express assumption of risk (in which the patient agrees in advance that the physician need not use reasonable care for the patient’s benefit) from implied assumption of risk (which is founded on the patient’s reasonable, voluntary, and intelligent consent to the risk of harm from the physician’s conduct). Under New York law, express assumption of risk completely exonerates the physician, and “dissolve[s] the physician’s duty to treat a patient according to medical community standards;” whereas implied assumption of risk triggers comparative negligence, in which the physician’s liability is reduced to the extent of the patient’s responsibility or fault. A number of jurisdictions follow this distinction, with minor variations.
As patients turn to new journals on alternative therapies, to the Internet, and to other sources outside traditional physician-patient channels, the informational swell will make judges and juries increasingly sympathetic to an implied assumption of risk defense. Physicians will point to the patient¹s awareness of sources describing risks associated with complementary and alternative therapies. This can soften a potentially adverse verdict by invoking the doctrine of comparative negligence, and assigning a portion of the fault (liability) to the patient. Yet, as Schneider and Charell suggest, in an implied assumption of risk defense, the physician facing comparative negligence can incur substantial monetary liability even if the jury finds that the patient bears significant responsibility for the harm. A complete defense is better than a partial defense.
The doctrine of assumption of risk, therefore, serves physicians best when the patient’s assumption of risks relating to the choice of a nonconventional treatment, selected and administered with due care, is deemed express. In jurisdictions authorizing such a defense, and holding it a complete bar to a medical malpractice claim, physicians will benefit from a prior clear, written agreement documenting the patient’s consent to (and express assumption of) all risks relating to the selection and execution, of complementary and alternative treatments. As noted, when armed with such an agreement, the physician should utilize due care in selecting and executing the treatment regimen, closely following whatever protocols and studies may exist.
Physicians must assess the risk of malpractice liability if treatment results in a claim of patient injury based on use of complementary and alternative medicine. It is impossible to forecast in advance which combinations of therapies courts and juries will later find acceptable or negligent. Yet, understanding definitional issues as well as existing defenses, such as express and implied assumption of risk, will help physicians structure clinical practice so as to provide the best possible care with minimal malpractice exposure.