Issue: April 2013
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Complementary and Alternative Medicine: Practitioner Liability

Introduction

Liability for Injury from Complementary or Alternative Treatments and Techniques

Americans are increasingly using the techniques, therapies, and approaches of complementary and alternative medicine. We now make more visits to nontraditional healers than to family doctors and spend almost as much (out of pocket) on alternative medicine ($27 billion) as on unreimbursed physician services ($29 billion).

 

Sales of dietary supplements in the U.S. reached $21.3 billion in 2005: vitamins were $3 billion, herbs $4.4 billion, minerals $1.8 billion, sports nutrition products $2.2 billion, multivitamins/minerals $4.2 billion, and other supplements totaling $5.7 billiion.


Attorneys, physicians, insurers, employers, and others who may be affected should be aware of the types of lawsuits that may arise from injury due to complementary or alternative medicine, what strategies and techniques to employ, and what issues are critical to know.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to demonstrate medical malpractice in litigation involving treatment by alternative or complementary medicine practitioners? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury involving treatment using alternative or complementary medicine? And, what is a potential strategy for a practitioner to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the practitioner was not negligent or there was no coverage for the injury involving alternative or complementary medicine? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for injuries resulting from treatment using alternative or complementary medicine? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Counsel must develop a checklist of facts and circumstances, specific to the client’s fact situation, which demonstrates proof of negligence or malpractice by an alternative or complementary medicine practitioner.

Physicians:

The other parties to the litigation will scrutinize the treating alternative or complementary medicine practitioner, medical experts, diagnosis, and treatment provided. The CAM practitioner must consider this checklist when presenting a defense to liability.

Insurers:

When investigating a claim of negligence or malpractice involving alternative or complementary medicine, the insurer should carefully evaluate the actions of the provider and others. The insurer should look for the following "red flags" and consider how they impact the insurance coverage and liability for payouts.

Employers:

Employers and their risk managers are concerned with preventing absenteeism and the ability of their employees to work effectively. The following checklist should be considered when determining if the employee’s injury involving alternative or complementary medicine is “work related.”

Expert Analysis

Will the Use of CAM Increase Under PPACA's Policy of Promoting Preventative Measures?

Ryan Abbott, M.D., J.D., M.T.O.M.

How Does Homeopathy Fit Into an Integrated System of Healthcare?

Nancy Gahles DC, CCH, RSHom(NA)

What Steps Can Alternative Medicine Practitioners Take To Avoid Lawsuits?

Paul Kemawikasit, NCCAOM

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, practitioner, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving alternative and complementary medicine?



Medical Examples

Alternative and Complementary Medicine Therapies and Techniques

This section provides an overview of alternative and complementary medicine, detailed medical information on what techniques and therapies are considered alternative and complementary medicine and how they are used, examples of alternative medicine products that recently have been found dangerous to consumers, and the prognosis and ability to work of a person injured when treated with alternative or complementary medicine.



Law and Medicine Resources

Law and Medicine Resources

Provided below is a listing of law and medical references for further information on the liability of complementary and alternative medicine providers.


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Complementary and Alternative Medicine: Practitioner Liability

Table of Contents
Introduction

Expert Analysis
   Ryan Abbott, M.D., J.D., M.T.O.M.
   Nancy Gahles DC, CCH, RSHom(NA)
   Paul Kemawikasit, NCCAOM

The Perspectives: Improve Your Strategy
   Attorneys
   Practitioners
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Practitioner Checklist
   Insurer Checklist
   Employers and Risk Managers

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Alternative and Complementary Medicine Therapies and Techniques

Law and Medicine Resources