Perspectives in Biology and Medicine

Perspectives in Biology and Medicine 43.4 (2000) 612-613

Book Review

Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives

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 specialities of health care providers--physicians, podiatrists, dentists, and chiropractors--who are involved in professional malpractice lawsuits that proved to be 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. [End Page 612]

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...