Non-traditional, or alternative, medicine most often encompasses chiropractic, acupuncture and naturopathy. In Washington, as in most states, each of these is defined by statute. Statutes also set out the scope of practice for each, in some cases specifically identifying treatments that are permitted or prohibited. The one thing that they have in common is not being authorized to dispense prescription medications. There are also published materials governing these disciplines, such as the Mercy Guidelines for chiropractic and a separate PDR for Herbal Medicine.
In addition to the usual challenges presented by a medical liability defense, these disciplines have the added challenge of public perceptions. These range from belief and support, to tolerance, to skepticism, or even hostility. As a first step, you should assess your own attitude toward your client’s practice. It is important that, in order for your client to have confidence in you, you return this confidence in his/her discipline. This is magnified when observed by a jury.
This issue of perception of your client’s form of alternative medicine adds a layer to voir dire that isn’t present in traditional medical liability cases. Potential jurors should be questioned about whether or not you or a family member have been or are being treated by a _____, would you consider being treated by a _____, or do you even consider a ______, to do you believe a ______ be a legitimate healthcare provider.
It is critical for a non-traditional practitioner to “know what they don’t know…” In addition to standard of care and informed consent issues, alternative practitioners are faced with a duty to refer. That is, to determine if the presenting symptoms or complaints require allopathic rather than alternative treatment. This could also arise during the course of treatment.
“Chiropractors and other drugless healers who are licensed providers of primary patient care owe a duty to exercise reasonable care in the diagnosis and treatment of their patients and a duty to inform them when non-medical has become useless or harmful and medical treatment should be sought.” Mostram v. Pettibon, 25 W. Ap. 158, 607 P 2d 864 (Div. Two, 1980)
More often than not, this issue will require, in addition to an expert in your client’s area of practice, a traditional, or allopathic, provider. Assuming that the plaintiff does likewise, this medical expert should be examined as to any prejudice against or preconceived notions about alternative medicine that he/she is bringing to the opinion expressed.
Defending an alternative practitioner presents some unique challenges. It also provides an opportunity to open minds, including your own, to new (in some instances thousands of years old) ideas.
Roger Hillmanis a neutral with Pacific ADR Consulting, where he is a mediator/arbitrator in disputes, both litigated and non-litigated in insurance, healthcare, commercial and personal injury matters. He is also of counsel to Paramount Law Group. He began his career as a litigator on the East Coast. After over ten years as Senior Vice President of Claims for three national insurance carriers, he resumed his litigation practice in the Northwest. Over the past twenty-five years, Roger concentrates his practice on health care and insurance matters, while also handling commercial disputes. In the health care arena, he has handled professional liability matters for a wide variety of providers; physicians, hospitals, psychologists, chiropractors, naturopaths and acupuncturists. He has also resolved numerous disputes involving provider credentialing, Medicare and Medicaid audits, medical devices and employment. His insurance background gives him a unique perspective, enabling him to resolve complex coverage matters, both for insurers and insureds, often without the need for protracted litigation.