Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives.

By  MICHAEL M. COHEN.

Baltimore: Johns Hopkins Univ. Press, 1999. Pp. 176.
$45.00.

There were several reason why Cohen’s was a difficult book to read or appreci­ate. It had a slow start and was not exactly summer beach reading. Furthermore, the "paradigm” discussion seemed tired and overused. This may have been due to the fact that the book was based, in part, on law review articles that were published as early as 1995.

I was initially offended by the broad-stroke, sweeping accusations and assumptions of the author that the “biomedical establishment” continues to guard its pro­fessional monopoly at the expense of the patient. The first pages of the book were almost evangelical in tone. What kept me going was the stated purpose of the book:  an effort to comprehend complementary and alternative medicine. I made that effort to comprehend because I recognized my own preconceptions about com­plementary and alternative medicine may amount to misconceptions and not comprehension at all.

It was my experience in defending all specialties of health care providers— physicians, podiatrists, dentists, and chiropractors—who are involved in profes­sional malpractice lawsuits that proved to he the biggest obstacle to my apprecia­tion of this text. Incidentally, I was somewhat surprised that the alternative medicine definition included chiropractors along with massage therapists, body-oriented psychotherapists, and acupuncture and naturopathy practitioners. My professional experience with defendant chiropractors has been that chiropractors are generally accepted as mainstream medical practitioners and respected by the American public and, by extension, by jurors. Chiropractic areas of practice also seem to be well enough defined so that the “biomedical establishment” can feel comfortable with the chiropractor’s ability to treat a patient within the chiropractic accepted area of practice. The book’s chiropractic references seemed to lag behind reality.

The author’s suggestion that the law should shift from a standard of care meas­urement of malpractice to an assumption of risk doctrine seemed superficial. The assumption of risk paradigm was held out as a basis for a patient’s right to select treatment outside biomedical modalities. However, the patient’s assumption of risk is not a bar to the medical malpractice lawsuit. Even the author’s example illus­trated the fatal flaw of an assumption of risk paradigm, because a malpractice award was merely reduced, not eliminated, with facts that could not be clearer: the patient chose an unorthodox treatment with full knowledge and complete assump­tion of risk. In the medical malpractice lawsuit described by the author, the patient was still awarded money damages when she sued the biomedical physician who provided alternative care with clear assumption of risk—facts set before the jury.

The author indicated that “outside of biomedicine, the standard of care is more fluid.” A defense lawyer for any medical practitioner (biomedical or alternative) needs to argue to a jury that the law requires a health care provider to act in a way and be measured against a standard that is clearly defined by expert testimony. The defense lawyer cannot successfully argue fluid standards of care to a jury. The jury, like most people, needs to know the rules or standard the practitioner is bound to practice by.

Importantly, the author pointed out that biomedical physicians who offer complementary and alternative medicine approaches can be subject to discipline. The Guess case described is a graphic example. A “highly competent physician” who offered homeopathic remedies to his patient as a last resort had his license revoked for his open-mindedness and willingness to embrace complementary and alterna­tive medicine. The Guess case acts as a warning of the danger of increased liability for the biomedical professional with an open mind as to complementary and alternative medicine.

Informed consent allegations often form a basis of medical malpractice lawsuits. The author’s concept that the informed consent doctrine does not sufficiently pro­tect the patient’s interests outside the biomedical paradigm was interesting to me. The author’s suggestion that informed consent theory needs to evolve to include a health care provider and patient discussion of alternative therapies seemed work­able. Usually, this would necessitate that the physician has a working knowledge of therapies which he does not encounter or integrate into his regular practice.

The discussion of the “duty to refer” as running both ways between the biomedical establishment and alternative and complementary medicine practices, as an expansion of the informed consent doctrine, was also interesting. In other words, a biomedical physician should refer a patient for more information to a naturo­path or a massage therapist, and then the patient would have more information available to him to make an informed consent decision. However, the liability from an informed consent allegation stems from the patient’s allegations that the professional did not provide all material risk information to the patient. How can the biomedical physician provide information with which he is not familiar~ Trust, con­fidence, and dependence of the biomedical physician on the complementary and alternative medicine provider to provide that information is key to making the “duty to refer” expansion of the informed consent doctrine feasible.

In the end, I came full circle in an effort to comprehend complementary and alternative medicine. Certainly, I developed more of an understanding of the scope of practice limitations and definitions of complementary and alternative medicine. However, the author raised many questions, and his solutions were not always realistic.

In the final analysis, I could not help but wonder if the author, an associate professor of law at Chapman University School of Law in Orange, California, had ever tried a case defending a physician or any medical care provider accused of mal­practice. If he had, I think he would agree that it is not necessarily the “concept of belief barriers” that prevent biomedical practitioners from viewing anything labeled as “alternative” or “complementary” in a positive light—but rather a realistic fear of litigation.

MADELEINE WELDON-LINNE
Attorney at Law, Chicago

Weldon-Linne, Madeleine, Complementary and Alternative Medicine:  Legal Boundaries and Regulatory Perspectives.  Perspectives in Biology and Medicine 43:4 (2000), 612-613.  Ó The Johns Hopkins University Press.  Reproduced with permission of the Johns Hopkins University Press.