Assumption of Risk &
Alternative Medicine
In Schneider a doctor who used alternative medicine, 'non-toxic' selenium, to treat breast cancer without success and yet may have been able to avoid liability because the record indicated that his patient may have implicitly 'assumed the risk' of a bad outcome.
In Charell the therapist was not so fortunate. His patient did not assume the risk of a bad outcome and the doctor was liable for failing to treat at the prevailing standard of medical care.
More can be read about the case here:
New York jury finds alternative medicine doctor negligent in patient's death
Note: In New York the trial court is called the supreme court instead of the superior court.
This comment from the judge is worth noting:
"While there may be a public debate as to the merits of
certain practices of nonconventional physicians, there was no similar debate
with respect to the evidence at this trial. The standard for proving negligence
in a malpractice case is whether the treatment deviates from accepted medical
standards...."
Basically the judge is saying that legally there is no need to get into the merits of alternative medicine because physician liability is based on whether or not the doctor deviated from the standards of care of allopathic medicine. Liability is not based on the validity (or lack thereof) of alternative medicine.
Some of the Hazards of Alternative Medicine.
1. Policy defense. If a physician uses alternative medicine in lieu of the allopathic treatment for which he is trained, licensed and insured, the malpractice carrier may elect to assert a policy defense, meaning they will not pay if you lose the case.
2. Malpractice. As can be seen in the Schneider and Charvell cases even when the patient is comfortable with having alternative medical treatment he may sue if the outcome is undesirable.
3. Loss of Chance. This is the Steve Jobs situation. According to reports, Steve Jobs chose to forgo allopathic therapy (surgery) in favor of 'natural' cures for his pancreatic cancer. By the time he recognized that 'natural' treatment was not going to work it was too late for conventional surgery and he died. Mr. Jobs knowingly made his choice, but if a physician faced with a less learned patient fails to warn of the danger of losing a chance to recover and if the patient continues to desire alternative treatment, then the physician may be liable for 'loss of chance'.
Explain it thoroughly, chart it thoroughly, and make the patient sign an unambiguous 'Assumption of Risk', not a 'Consent for Treatment'.
A standard Informed Consent form conveys the idea that you are offering something and the patient is accepting it. The 'Assumption of Risk' makes clear that the patient is asking for something non-standard and has agreed to accept the risks attendant on it.
4. Unknown drug interactions. Even if a physician is not using alternative therapies, he should avoid sounding too judgmental when trying to find out if his patient is taking 'vitamins' or 'herbs' or whatever on his own so the physician will know to avoid the risk of dangerous complications. He can also chart that he asked and how the patient responded. If the patient failed to disclose everything and the outcome is unfortunate the physician has documented that he took reasonable steps to avoid bad interactions.
5. It might be dangerous. Every now and then one sees things like this: Herbal remedy may trigger widespread kidney failure.
For More on The Subject of Modern Medicine and Alternative Medicine:
I was once challenged after my talk about the differences between 'traditional medicine' on one hand and allopathic treatments supported by double-blind studies and regulations for manufacturing quality on the other.
"But! but! What if a 'traditional medicine is proven to work with a double-blind study and has strict quality controls?"
"Then it isn't 'traditional medicine' anymore," I answered. "Now its allopathic medicine."
If you are trained, licensed, and insured for allopathic medicine you are not prohibited from wandering into CAM or Alternative Medicine, but to use a now familiar term, you Assume the Risk if you do.
Liability is not based on the validity (or lack thereof) of alternative medicine. homeremedieslog.com
ReplyDeleteYour observation is entirely correct. The quote from the court opinion I gave above says essentially the same thing.
ReplyDeleteThe question is whether in using alternative medicine the doctor deviated from the standards of care for allopathic medicine. If the doctor is trained in allopathic medicine, insured for allopathic medicine, and holds himself out as a practitioner of allopathic medicine then he runs a risk when he sets that aside in favor of alternative medicine or any remedy other than that for which he is insured and trained. .
Reverse the circumstances. Imagine a person trained and insured for practicing a recognized alternative therapy who ventures into heart surgery with bad consequences. Do not expect his insurer to pay the bill for liability arising from acts so far outside the standards of care accepted within that area of alternative medicine.
The liability attaches to someone not because the field of practice is invalid but because he is not trained (or insured) to do it.
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