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Litigation of malpractice cases involving complementary and alternative (CAM) medicine is similar to that of other actions, but there are nuances of which attorneys should be cognizant. The following sample complaint and answer includes language that should assist in the successful prosecution and defense of these cases.
SAMPLE COMPLAINT LANGUAGE
STANDARD OF CARE Defendant, in the diagnosis and treatment of plaintiff, was negligent in failing to use the same degree of skill, diligence and care as is possessed and used by prudent, skillful, and careful chiropractors practicing in the same vicinity. [FOOTNOTE 1] Defendant [chiropractor] was negligent in failing to take X-rays of plaintiff’s shoulder on [date], or at any time thereafter, although X-ray procedures were readily available to defendant and were standard procedures in determining and diagnosing the nature and extent of plaintiff’s injuries. [FOOTNOTE 2] PROXIMATE CAUSE In treating decedent, defendant [chiropractor] negligently, carelessly and unskillfully manipulated her head and neck by taking hold of her head and neck and jerking, twisting, pushing, rubbing, massaging and gouging with such force that defendant injured the spinal meninges, with the proximate result being intraspinal bleeding, compression of the spinal cord, spinal concussion, shock and death. [FOOTNOTE 3] By reason of the growth of the tumor during the eight-month period when defendant [chiropractor] was administering chiropractic treatment to plaintiff, it became impossible for a physician and surgeon of skill and ability to cure plaintiff completely, but, on information and belief, a complete cure would have been possible if plaintiff’s condition and its cause had been properly diagnosed and treated at the time plaintiff first consulted defendant or within a reasonable time afterwards. [FOOTNOTE 4] LACK OF INFORMED CONSENT On [date], plaintiff employed defendant [chiropractor] to treat plaintiff for a sprained neck and spine. On [date], defendant gave to plaintiff what purported to be a chiropractic treatment. The treatment, however, did not consist of what is commonly called an adjustment of the spine. Defendant pulled, pushed and manipulated plaintiff’s arm and shoulder to such extent that plaintiff’s arm and shoulder became bruised and the nerves therein partially paralyzed. This manipulation of plaintiff’s arm and shoulder was against plaintiff’s will and without plaintiff’s consent. [FOOTNOTE 5] PRAYER FOR RELIEF WHEREFORE, under this cause of action, the plaintiff demands judgment against the defendant for compensatory damages in an amount in excess of [dollar amount] with interest on such amount as allowed by law from the date of judgment until paid, costs of suit, and such further relief as the court deems just.
SAMPLE ANSWER LANGUAGE
ADMIT IN PART/DENY IN PART Defendant admits that decedent was under the care, from time to time, of [the nonphysician CAM provider] in addition to other health care providers. Defendant denies each and every remaining allegation of paragraph _ of the complaint. ASSUMPTION OF THE RISK Upon information and belief, plaintiff had full knowledge of the risks and possible adverse consequences pertaining to the use of intravenous hydrogen peroxide and intravenous germanium for the treatment of bronchitis. [FOOTNOTE *]Any such losses arose from and were caused by risks of which plaintiff was aware, and such risks were accepted and assumed by plaintiff. For that reason, any recovery sought against the [nonphysician CAM provider] should be diminished, reduced, offset or barred in accordance with the principles of assumption of the risk. PROXIMATE CAUSE There is no proximate cause between any claimed actions or failure to act on the part of the [nonphysician CAM provider] and any damages, injuries or losses claimed by plaintiff. PRAYER FOR DISMISSAL WHEREFORE, defendant [acupuncturist], by his/her attorneys, demands judgment dismissing the complaint herein, together with the costs and disbursements of this action. ::::FOOTNOTES:::: FN1 See“Complaint, Petition, or Declaration-Failure to Diagnose Brain Tumor-Against Chiropractor,” 19A Am. Jur. Pleadings and Proof Forms Physicians, Surgeons, and Other Healers � 354 (Lawyers Cooperative Publ’g 1997 and Supp. 2000). FN2 See“Complaint, Petition, or Declaration-Failure to Take X-Rays to Diagnose Dislocated Shoulder-Against Chiropractor,” 19B Am. Jur. Pleadings and Proof Forms Physicians, Surgeons, and Other Healers � 392 (Lawyers Cooperative Publ’g 1997 and Supp. 2000). FN3 See“Complaint, Petition, or Declaration-Negligent Adjustment by Chiropractor-Wrongful Death,” 19A Am. Jur. Pleadings and Proof Forms Physicians, Surgeons, and Other Healers � 337 (Lawyers Cooperative Publ’g 1997 and Supp. 2000). FN4 See“Complaint, Petition, or Declaration-Negligence of Chiropractor in Failing to Discover Tumor,” 19A Am. Jur. Pleadings and Proof Forms Physicians, Surgeons, and Other Healers � 339 (Lawyers Cooperative Publ’g 1997 and Supp. 2000). FN5 See“Complaint, Petition, or Declaration-Negligent Adjustment by Chiropractor,” 19A Am. Jur. Pleadings and Proof Forms Physicians, Surgeons, and Other Healers � 336 (Lawyers Cooperative Publ’g 1997 and Supp. 2000). FN* See“Physician Found Liable for Punitive Damages for Experimental Use of Intravenous Hydrogen Peroxide and Intravenous Germanium,” 15 No. 9 Verdicts, Settlements & Tactics 320 (Sept. 1995). This sample clause is intended to serve solely as an exemplar and may need to be modified to conform to the legal requirements of your jurisdiction. It in no way constitutes legal advice. Julie A. Braun, a Chicago-based attorney and writer, is co-chair of the American Bar Association Medicine and Law Committee. Telephone: (715) 649-3244; e-mail: [email protected] Maria Elyse Rabar, a New York-based attorney and writer, is president of the New York State Medical Defense Association. Telephone: (718) 230-0352; e-mail: [email protected]

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