Alternative medicine and medical malpractice: Emerging issues

Journal of Legal Medicine

Volumn 22, Issue 4, 2001, Pages 533-552

  Doyle, Aimee ^a  

^a NONE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ACUPUNCTURE; ALTERNATIVE MEDICINE; GENERAL PRACTITIONER; HEALTH INSURANCE; INFORMED CONSENT; LICENCE; MALPRACTICE; MANIPULATIVE MEDICINE; MEDICAL LIABILITY; MEDICAL PRACTICE; MEDICAL SERVICE; PATIENT CARE; REVIEW;

COMPLEMENTARY THERAPIES; HUMANS; INFORMED CONSENT; LIABILITY, LEGAL; LICENSURE, MEDICAL; MALPRACTICE; REFERRAL AND CONSULTATION; UNITED STATES;

EID: 0035674983     PISSN: 01947648     EISSN: None     Source Type: Journal    
DOI: 10.1080/01947640152750955     Document Type: Review

References (101)

1. "Alternative medicine" is a term that is used to describe the vast array of approaches to the treatment of human ailments, approaches that are not accepted by orthodox medicine. See Colin Feasby, Determining the Standard of Care in Alternative Contexts, 5 HEALTH L.J. 45 (1997). Alternative medicine can include such practices as chiropractic, acupuncture, naturopathy, homeopathy, herbal and oriental medicine, nutritional guidance, and many other lesser known modalities. Chiropractic, acupuncture, naturopathy, and homeopathy are defined and discussed in greater detail in section I of this article.
2. David Eisenberg et al., Unconventional Medicine in the United States: Prevalence, Costs, and Patterns of Use, 328 NEW ENG. J. MED. 246 (1993) [hereinafter Unconventional].
3. The authors of this frequently cited study found that, in 1990, one-third of Americans consulted alternative providers. Americans made 425 million visits to alternative providers and spent $13.7 billion on alternative health care (three-quarters of which was not reimbursed by insurance companies). A follow-up study in 1997 found that 42% of Americans had used alternative therapies and spent $27 billion on these therapies. David Eisenberg et al., Trends in Alternative Medicine Use 1990-1997: Results of a Follow-up National Survey, 280 J.A.M.A. 1569 (1998) [hereinafter Trends].
4. See Unconventional, supra note 2, at 248. Reliance on unconventional providers is more significant among college graduates and those with higher incomes.
5. Richard A. Cooper & Sandi J. Stoflet, Trends in the Education and Practice of Alternative Medicine Clinicians, 15 HEALTH AFF. 226 (Fall 1996),
6. cited in Kathleen M. Boozang, Western Medicine Opens the Door to Alternative Medicine, 24 AM. J.L. & MED. 185, 187 (1998).
7. J. Borkan et al., Referrals for Alternative Therapies, 39 J. FAM. PRAC. 545 (1994). The authors of the study found that primary care physicians were more likely than other medical specialists to be familiar with alternative therapies and to recommend them to their patients.
8. Lori B. Andrews, The Shadow Health Care System: Regulation of Alternative Health Care Providers, 32 HOUS. L. REV. 1273, 1275 (1996). Professor Andrews suggests that alternative providers can provide effective care for chronic conditions and routine illnesses. Alternative providers also excel at preventive health care.
9. There is a detailed explanation of chiropractic, naturopathy, acupuncture, and homeopathy in section I.
10. See Feasby, supra note 1, at 51.
11. See generally the following cases where alternative practitioners were found guilty of practicing medicine without a license. State v. Miller, 542 N.W.2d 241 (Iowa 1995) (alternative practitioner); Mitchell v. Clayton, 995 F.2d 772 (7th Cir. 1993) (acupuncturists who graduated from professional acupuncture school but who did not graduate from medical, osteopathic, or chiropractic colleges); Majebe v. Board of Med. Exam'rs, 416 S.E.2d 404 (N.C. App. 1992) (M. C. Majebe was an acupuncturist, a naturopath, and the sole proprietor and owner of the Chinese Acupuncture and Herbology Clinic); Foster v. Georgia Bd. of Chiropractic Exam'rs, 359 S.E.2d 877 (Ga. 1987) (chiropractor who offered nutritional advice); Stetina v. State, 513 N.E.2d 1234 (Ind. App. 1987) (nutritionist); State v. Hinze, 441 N.W.2d 593 (Neb. 1989) (pharmacist, with a degree from a Canadian college, gave seminars in which he was introduced as Dr. Hinze and in which he provided information regarding homeopathic and naturopathic remedies).
12. MICHAEL H. COHEN, COMPLEMENTARY & ALTERNATIVE MEDICINE: LEGAL BOUNDARIES AND REGULATORY PERSPECTIVES 56 (1998).
13. In conventional medical practice, malpractice claims are not spread evenly. Certain specialities, such as surgery, anesthesiology, obstetrics, and emergency medicine produce claims much more frequently than other specialties. This likely is due to the higher risk of serious injury and death in these specialties, as opposed to practice areas such as dermatology.
14. See Boyle v. Revici, 961 F.2d 1060 (2d Cir. 1992) (court found that surgery would have given the patient a very good chance at recovery, but she elected nonconventional therapy instead and died). See also Charell v. Gonzalez, 660 N.Y.S.2d 665 (Misc. 1997) (an alternative practitioner persuaded his patient to forgo chemotherapy and radiation for her uterine cancer. Instead, she undertook his alternative treatment, which included a special diet and six coffee enemas a day. Her cancer recurred, causing blindness and severe back problems. She filed a lawsuit for medical malpractice.).
15. Boozang, supra note 4. To dispel the perception that alternative medicine is nonconventional and potentially dangerous, many advocate using the term "complementary medicine."
16. Definitions of chiropractic, acupuncture, naturopathy, and homeopathy are taken from THE BURTON GOLDBERG GROUP, ALTERNATIVE MEDICINE: THE DEFINITIVE GUIDE (1993) (chiropractic 134-42;acupuncture 37-46; naturopathy 360-68; and homeopathy 272-80).
17. Chiropractic was founded in 1895 by an American named David Palmer and may represent the most utilized alternative therapy in the United States. Chiropractic is concerned with the relationship between the spinal column and the musculoskeletal structure of the body to the nervous system. Theoretically, the reason that proper alignment of the spinal column is essential for optimum health is that the spinal column acts as a "switchboard" for the nervous system. Chiropractors think that pain and disease are caused by displaced vertebrae (also called subluxations). Manipulation of the vertebrae can cause relief for the patient.
18. Acupuncture originated in China 5,000 years ago and was brought to the United States by Chinese immigrants in the mid-1800s. Acupuncture is based on the belief that health is determined by a balanced flow of qi (pronounced "chee"), a vital energy present in all living organisms. According to acupuncture theory, qi circulates in the body along 12 major energy pathways, called meridians, each linked to specific organs and organ systems. There are over 1,000 acupoints in the meridian system, which can be stimulated to enhance the flow of qi. When special needles are inserted into these acupoints (just under the skin) they help correct and rebalance the flow of energy and consequently, relieve pain, and/or restore health.
19. Naturopathic medicine is not a single modality of healing, but an array of healing practices, including diet and clinical nutrition, homeopathy, acupuncture, herbal medicine, hydrotherapy, therapeutic exercise, massage, and others. Naturopathy draws from the healing disciplines of many cultures: Indian (Ayurveda); Chinese (Traditional Chinese Medicine); Native American; and Greek (Hippocratic). Naturopaths believe they are most effective in the treatment of chronic and degenerative disease.
20. Homeopathy was founded in the late eighteenth century by Samuel Hahnemann, a German physician. The word "homeopathy" derives from the Greek words homoios meaning "similar" and pathos meaning "suffering." Homeopathic remedies are based on the principle that "like cures like," suggesting that, if a large dose of a particular substance causes symptoms (say of malaria) in a healthy person, then a smaller dose might stimulate the body to fight the disease. Homeopaths believe that the more a remedy is diluted, the greater its potency, and that illnesses are specific to the individual.
21. See BURTON GOLDBERG GROUP, supra note 14 (American Chiropractic Association, American Association of Acupuncture and Oriental Medicine, National Commission for the Certification of Acupuncturists, National Center for Homeopathy, and American Association of Naturopathic Physicians).
22. See Andrews, supra note 6, at 1275 (listing the following professional journals dealing with alternative medicine: Journal of Alternative and Complementary Medicine: Research on the Paradigm, Practice, and Policy; Alternative Therapies in Health and Medicine; and Alternative Health Practitioner: The Journal of Complementary and Natural Care).
23. See Boozang, supra note 4, at 196.
24. See COHEN, supra note 10, at 43.
25. Id. at 41.
26. See http://nccam.nih.gov (last visited June 30, 2001).
27. See Feasby, supra note 1, at 50.
28. See COHEN, supra note 10, at 8. See also Deborah Daly, Alternative Medicine Courses Taught at U.S. Medical Schools: An Ongoing Listing, 1 J. ALT. COMP. THER. 205 (1995).
29. See COHEN, supra note 10, at 8, 9 (noting that a significant percentage of physicians either encourage or offer unconventional therapies).
30. Barbara Whitaker, Providing Alternatives, CHI. TRIB., Dec. 6, 1996, at C7.
31. Id.
32. Id.
33. Gina Kolata, On the Fringes of Health Care, Untested Therapies Thrive, N.Y. TIMES, June 17, 1996, at A1.
34. Id.
35. See Andrews, supra note 6, at 1279 (citing Sarah Tippit, Alternative Medicine Creeps into the Mainstream, REUTER BUS. REP., July 12, 1995).
36. Mutual of Omaha has reported $6.50 saved for every dollar spent since adopting that plan, which has led other major insurers, such as Travelers and Blue Cross Blue Shield, to extend similar coverage. Id.
37. Id. at 1285. Andrews cites data that suggest alternative providers use fewer unnecessary services. They order fewer costly tests, prescribe fewer drugs, and use lower cost treatments.
38. See Whitaker, supra note 28, at C7 (quoting the former editor of the Journal of the American Medical Association, George Lundberg: "Managed care organizations are competing bitterly with each other and are looking for every kind of market tool they can find to get people to sign up with them Since alternative medicine is popular with many patients, a managed-care company wanting an edge might be very smart to offer it.").
39. See Unconventional, supra note 2.
40. WILLIAM J. CURRAN ET AL., HEALTH CARE LAW AND ETHICS 234 (5th ed. 1998).
41. Hunter L. Prillaman, A Physician's Duty to Inform of Newly Developed Therapy, 6 J. CONTEMP. HEALTH L. & POL'Y 43 (1990).
42. Id. at 44-45.
43. Id. at 45.
44. Id. at 46-47.
45. Id. at 48.
46. Id. at 53-55.
47. See Unconventional, supra note 2.
48. See Boozang, supra note 4 (citing David Holtzman, Green Tea, Mistletoe, and More: Canadians Test Alternative Cancer Therapies, J. NAT'L CANCER INST. 683, 683 (1997)).
49. See Feasby, supra note 1 (citing C. Laureman, What Else Doc? The Failings of Conventional Medicine Have People Turning to Acupuncturists, Chiropractors, Osteopaths, and Other Alternative Practitioners, CHI. TRIB. SUNDAY MAG., Jan. 24, 1993, at 12).
50. 1991 U.S. Dist. LEXIS 14712, at 2.
51. See COHEN, supra note 10, at 61, 62.
52. Id. at 62.
53. 626 A.2d 318 (Conn. App. 1993).
54. See Boozang, supra note 4, at 204.
55. Id. at 187.
56. Id. at 204.
57. Id. at 208.
58. Id. at 194.
59. See Andrews, supra note 6, at 1305 (citing FLA. STAT. ANN. § 458.303(2) (West 1991)).
60. Maura Lerner, Case Against Healer Settled Out of Court; Agreement Specifies Terms, Review of Naturopath's Practice, STAR TRIB. (Minneapolis, Minnesota), Sept. 19, 1996, at 1B.
61. See also Maura Lerner, Supporters Rally for Holistic Healer; Hearing in Case Against Naturopath Postponed, STAR TRIB., Aug. 22, 1996, at 3B.
62. 567 A.2d 524 (Md. App. 1990) (if the evidence supports a finding that the surgeon controlled the details of another person's work or conduct in the operating room, the surgeon might be considered the special employer and liable for the negligence of the borrowed servant, as cited in CURRAN ET AL., supra note 37, at 401).
63. See Kolata, supra note 31, at A1.
64. See COHEN, supra note 10, at 70, 71 (citing Darling v. Charleston Comm. Mem'l Hosp. 211 N.E.2d 253 (Ill. 1965)). Under the doctrine of corporate negligence, courts have imposed direct liability on health care institutions for negligently failing to properly supervise health care professionals. Cohen notes that, even if health care institutions can avoid direct liability, they may still be held liable under vicarious liability theory. Id. at 71.
65. Id. at 70, 71.
66. Generally, once the physician-patient relationship is formed, it is implicit that the relationship continue for as long as the patient requires treatment. Abandonment liability can result when a physician ceases treatment for nonmedical reasons and the patient is injured as a result. In some ways, it is more akin to breach of contract than medical malpractice. See CURRAN ET AL., supra note 37, at 184-85.
67. See Boozang, supra note 4, at 210.
68. Id.
69. See In re Guess, 393 S.E.2d 833, 838, 840 (N.C. 1990). See also Sletten v. Briggs, 448 N.W.2d 607, 611 (N.D. 1989) (court upheld the licensure suspension of a physician who used chelation therapy for arteriosclerosis, atherosclerosis, cardiac arrhythmia, and hypertension); Vance v. Fordham, 671 P.2d 124, 126, 131 (Utah 1983) (court upheld licensure revocation because the physician practiced chelation therapy and used laetrile, used kinesiology to test for food allergies, and experimented with Kirlian photography as a diagnostic tool); Washington State Med. Disciplinary Bd. v. Johnston, 663 P.2d 457, 461 (Wash. 1983) (court upheld licensure revocation of a physician who used "natural remedies" with two patients who subsequently died). These cases are cited in Boozang, supra note 4, at 207.
70. See COHEN, supra note 10, at 56. Chelation therapy is endorsed by the American College for Advancement in Medicine, the American Board of Chelation Therapy, and the American Holistic Medical Association. These organizations claim that chelation therapy is more effective and safer than bypass surgery. Other professional organizations cite insufficient studies and disagree.
71. Rogers v. State Bd. of Med. Exam'rs, 371 So. 2d 1037, 1038 (Fla. App. 1979).
72. 498 F. Supp. 1038 (S.D. Tex. 1980). This case has been followed by Armstrong v. State, 989 P.2d 364 (Mont. 1999) (interpreting the right to accept or reject medical treatment broadly for abortion rights), criticized by Majebe v. Board of Med. Exam'rs, 416 S.E.2d 404, 408 (N.C. App. 1992) (court found that acupuncturist has no protected privacy right to practice unorthodox medical treatment).
73. 817 F.2d 987 (2d Cir. 1987).
74. Id. at 995.
75. Id. at 996.
76. 961 F.2d 1060 (2d Cir. 1992).
77. Id. at 1063.
78. See Boozang, supra note 4, at 212.
79. 466 So. 2d 856 (Miss. 1985).
80. See Boozang, supra note 4, at 205.
81. Consider the case of Guerrero v. Smith, 864 S.W.2d 797 (Tex. App. 1993). At trial, the jury found that Dr. Guerrero, a licensed physician, who claimed to practice homeopathic medicine, had been grossly negligent; he had injected plaintiff many times in different areas, using unsterilized needles, with a concoction of vitamins, minerals, and dimethyl sulfide. The plaintiff became infected, asked for antibiotics, and was told to drink her morning urine instead. She refused, became massively infected, and nearly died from septic shock.
82. See COHEN, supra note 10, at 58.
83. See, e.g., Clark v. Department of Prof'l Reg., Bd. of Med. Exam'rs, 463 So. 2d 328 (Fla. App. 1985) (court found no respectable minority in the medical profession that endorsed metabolic therapy, using laetrile in conjunction with chemotherapy), discussed in COHEN, supra note 10, at 58.
84. See, e.g., Brook v. St. John's Mickey Mem'l Hosp., 380 N.E.2d 72 (Ind. 1978); COHEN, supra note 10, at 58 (cases cited therein).
85. See COHEN, supra note 10, at 58.
86. See, e.g., Bryant v. Briggs, 49 N.W.2d 63 (Mich. 1951) (standards for osteopaths); Hilgedorf v. Bertschinger, 285 P. 819 (Ore. 1930) (standards for naturopaths); Hardy v. Dahl, 187 S.E. 788 (N.C. 1936) (standards for naturopaths); Feasby, supra note 1, at 57 (cases cited therein).
87. See Feasby, supra note 1, at 64.
88. See COHEN, supra note 10, at 56.
89. Id. at 59.
90. A Virginia study using medical malpractice review panels found that 0.4% of claims were made for alleged practice in chiropractic, as compared to 11.5% of claims for obstetrics and gynecology, 8.9% for general surgery, and 8.4% for internal medicine. Less than 1% of naturopathicphysicians nationwide have been sued for malpractice. See COHEN, supra note 10, at 153 n.42.
91. See Andrews, supra note 6, at 1282. Professor Andrews comments that various studies have found a relationship between the quality of provider-patient communications and the incidence of malpractice litigation.
92. See Feasby, supra note 1, at 51.
93. See COHEN, supra note 10, at 66.
94. A sampling of recent cases of chiropractors sued for malpractice includes Murphy v. Nordhagen, 588 N.W.2d 96 (Wis. App. 1998) (chiropractor sued for failure to diagnose herniated disc, but court found that the chiropractor did not breach the standard of care); Barrenechea v. LaMonica, 689 A.2d 1137 (Conn. App. 1997) (patient brought medical malpractice action against chiropractor seeking to recover for permanent disability of his spine and court found the chiropractor did not breach the standard of care in his initial evaluation or in obtaining informed consent, but did breach the standard of care when he persisted in manipulation of plaintiff's neck despite the development of severe pain; however, this breach was not the proximate cause of plaintiff's injuries); Fletcher v. Fenoli, 674 So. 2d 1048 (La. App. 1996) (patient sued chiropractor for malpractice, alleging that fracture in her arm during thoracic spinal adjustment was caused by defendant's negligence; court found the evidence did not indicate that defendant breached the standard of care); Piazza v. Behrman Chiropractic Clinic, 601 So. 2d 1378 (La. 1992) (patient sued chiropractor for malpractice; court found defendant's treatment caused herniated disc).
95. For an acupuncture malpractice case, see Konstantinidis v. Chen, 626 F.2d 933 (D.C. Cir. 1980) (acupuncturist sued for malpractice when a needle broke off during one treatment, leaving the tip lodged in plaintiff's neck; plaintiff argued that this caused neck pain radiating into the right arm. The court found there was no way to determine whether negligent acupuncture caused plaintiff's pain, because he had been injured at work previous to the treatments and filed a workers' compensation claim wherein he asserted the work-related accident was the sole cause of his pain). For cases against other alternative providers, see Charell v. Gonzalez, 660 N.Y.S.2d 665 (Sup. Ct. 1997) (patient sued alternative provider who persuaded patient to forgo chemotherapy and radiation and to follow defendant's protocol, which included a special diet and six coffee enemas a day ; court found defendant was 51% at fault and plaintiff was 49% at fault under assumption of risk theory and awarded $4 million in compensatory and $150,000 in punitive damages). See also Kelly v. Carroll, 219 P.2d 79 (Wash. 1950) (plaintiff's widow brought suit against drugless healer who treated her husband's abdominal pain with hot and cold packs, laxatives, electrical "sine waves," pineapple juice, and massage; plaintiff died of peritonitis secondary to appendicitis).
96. See COHEN, supra note 10, at 66.
97. Id.
98. Id. at 152 n.29. A Minnesota statute requires acupuncturists to disclose side effects and possible risks associated with acupuncture treatment. MINN. STAT. § 147B.06.I(b). 95 See Feasby, supra note 1, at 54-57.
99. Id. at 58, 59.
100. 492 A.2d 371 (N.J. 1985).
101. See Mostrom v. Pettibon, 607 P.2d 864 (Wash. App. 1980) (chiropractor diagnosed a herniated disc and failed to refer to a physician); Tschirhart v. Pethel, 233 N.W.2d 93 (Mich. App. 1975) (chiropractor's x-ray revealed a fracture and the chiropractor failed to refer the patient to a medical doctor). The duty to refer has been codified for other providers such as acupuncturists. See COHEN, supra note 10, at 154 n.54.