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The surging interest in complementary and alternative (CAM) medicine carries with it the potential for a dramatic rise in related malpractice claims. Although litigation of cases involving CAM is similar to that of other actions, there are nuances of which attorneys should be cognizant. This article explores some of those subtleties and offers suggestions for the successful prosecution and defense of these cases. DRAFTING THE COMPLAINT As in virtually all litigation, the first pleading filed with the court is the complaint. For discussion purposes, the plaintiff is either a patient or a party acting on the patient’s behalf (such as an estate administrator or administratrix), while the defendant is a nonphysician CAM provider (such as a chiropractor, acupuncturist or naturopath) or a conventional physician who incorporates alternative treatment into his or her practice. Other possible defendants include a hospital or entity that employs CAM providers or grants them staff privileges. This article does not address nonmalpractice claims, such as those brought against insurers that, for example, deny coverage. The complaint must state a cause of action (such as medical malpractice or general negligence) and detail its elements. Defense counsel should be alert to the possibility that, although the complaint is phrased to present and gain the advantages of one theory of liability, the court hearing the case may determine that the complaint’s substance reflects a different theory. The court may conclude, for instance, that medical malpractice, rather than general negligence or fraud, forms the basis of the complaint and, thus, the medical malpractice statute of limitations applies and either bars or allows the action. A plaintiff must plead in the complaint (and ultimately prove at trial) that the defendant owed a duty to the patient to render treatment in accordance with the appropriate standard of care and that said treatment deviated from this standard. Further, the plaintiff must plead (and later prove) that the defendant’s conduct proximately caused the patient’s injuries. Finally, the complaint must assert a prayer for damages. CAM practitioners, whether physicians or nonphysicians, are vulnerable to claims for punitive damages, given an increased likelihood of adducing expert testimony that the defendant’s treatment was so far beyond the bounds of acceptable as to rise to the level of wanton or reckless conduct. In drafting the complaint, plaintiff’s counsel should remember that punitive damages must be pleaded separately and specifically. Defense counsel should be mindful of insurance coverage or lack thereof for punitive damages. PREPARING THE ANSWER TO THE COMPLAINT Defense counsel, in practice, answers the complaint with a general denial of the allegations contained therein and specifies a defense or argument justifying the position taken. If the defendant chooses to admit some of the allegations and deny others, only those issues denied are subject to litigation. If the defendant fails to answer the complaint within the statutorily prescribed time, the plaintiff may seek judgment by default against the defendant. In certain instances, however, a default judgment will be vacated if the defendant can demonstrate an acceptable excuse for failing to answer in a timely fashion. The defendant may assert affirmative defenses in its answer that show that some, if not all, of the claim is unfounded, including, among others, that the time period within which a suit may be initiated has elapsed or that the complaint fails to state a claim on which relief can be granted. Failure of the plaintiff to establish that an alleged act proximately caused the injuries suffered is a widely used, and often viable, defense. Assumption of the risk also may be successfully asserted. Last, the answer may include notice that the defendant will rely on other defenses that become apparent during discovery. JURY SELECTION The importance of jury selection in cases involving CAM cannot be overstated. Some members of the lay public may view CAM as synonymous with quackery. See, e.g., Schneider v. Revici, 817 F.2d 987, 993 (2d Cir. 1987) (defining a quack as “a person who promotes and sells unproven methods of therapy, falsely representing them to be effective”). Use voir dire to uncover potential jurors’ pre-existing beliefs and biases about CAM. In addition, inquire about any personal experience with seeking or using CAM. Also consider the impact and recency of media reports or coverage of the specific alternative treatment at issue. From the defense perspective, it is critical to remove some of the mystique surrounding CAM to ensure that jurors focus on substantive issues. Consider, for example, a case involving a nonphysician CAM provider who treated the plaintiff-patient successfully. SeeDavid M. Yamins, “Using the Central Emotional Theme in the Courtroom,” 209 N.Y.L.J., April 28, 1993, at 1. The plaintiff later developed problems after being treated by conventional physicians, and those doctors, in turn, blamed the original nonphysician CAM provider for the injuries. The patient brought suit against the nonphysician CAM provider and won an award in excess of the malpractice policy. The jurors’ attention focused on the controversy surrounding CAM, rather than on the fact that the nonphysician CAM provider was the only one who helped the patient. CROSS AND DIRECT EXAMINATION The failure to present expert testimony is usually fatal to a plaintiff’s malpractice action. The doctrine of res ipsa loquitor is an exception. Expert testimony may establish or refute that defendant’s actions proximately caused the plaintiff’s injury. In Eubanks v. Salmon, No. 99-CA-425, 2000 WL 178011 (La. Ct. App. Feb. 16), reh’g denied(March 20), writ granted in part and remanded, 762 So.2d 633 (La. May 31), for example, a chiropractor was found liable for injuries that occurred after manipulation of the patient’s neck. An orthopedic surgeon and neurosurgeon, with expert knowledge of the neck and spine, had testified at trial that manipulation should never be performed on a person with a degenerative disease, which the patient had. It was evident that the patient had no trouble with his neck until after the manipulation. Proximate cause generally is a question of fact for the jury to decide. The weight accorded expert testimony in such cases is for the trier of fact to determine. The typical CAM case features a battle of experts over the appropriate standard of care. In Johnson v. Price, No. 1980708, 1999 WL 667296 (Ala. Aug. 27, 1999), the Alabama Supreme Court held that the health care provider testifying as an expert witness must be certified by the same board as the defendant health care provider to testify to the applicable standard of care. Thus, the plaintiff could not use a doctor certified by the American Board of Surgery to provide expert testimony as to the standard of care required of an osteopath certified by the American Osteopathic Board of Surgery. The plaintiffs filed suit against defendant, alleging that he had negligently caused a patient’s death. In response to defendant’s affidavit stating that he had complied with the applicable standard of care, the plaintiffs presented the affidavit of a physician whose testimony was stricken because the defendant and plaintiff’s expert were certified by two different organizations — the American Osteopathic Board of Surgery and the American Board of Surgery, respectively. The Alabama Supreme Court affirmed the trial court’s determination, concluding that “the only instance in which a court can consider the expert testimony of another health-care provider is an instance in which the expert witness is certified by the very same organization that certified the defendant health-care provider.” This holding represents a departure from the previous rule regulating the admission of standard of care testimony in a medical malpractice action. According to prior case law, an expert witness did not necessarily need to be certified by the same board in order to testify as to the standard of care applicable to another health-care provider. Direct examination of the defendant practitioner should be geared toward establishing that he or she is not a quack and, in fact, was convinced on a scientific basis of the efficacy of the proposed treatment. Establishing that the defendant did not act recklessly is critical in defusing potential claims for punitive damages. Informed consent may be the key area of importance for plaintiff’s cross-examination. Focus on express or implied consent, or even assumption of the risk. In light of the fact that the ever-increasing trend toward CAM has been largely consumer-driven, it is axiomatic that many potential plaintiffs view themselves as knowledgeable about alternative medical treatment, and this, in turn, may affect the informed consent issue. JURY INSTRUCTIONS AND CHARGE The statement of a duty owed by the defendant may be set forth in state pattern jury instructions. As many actions involving CAM are cases of apparent first impression, however, counsel may wish to consider fashioning specific jury instructions. Moreover, special attention should be given to that portion of the charge that deals with informed consent, particularly where assumption of the risk is asserted as a defense. In Schneider v. Revici, the complaint asserted claims of fraud, medical malpractice, lack of informed consent and loss of consortium. A district court judge refused to charge the jury on the affirmative defense of express assumption of risk and entered judgment on a jury verdict favoring the patient. The 2nd U.S. Circuit Court of Appeals, applying New York law, recognized a jury charge on express assumption of risk as proper in medical malpractice cases where a patient knowingly forwent conventional medical treatment and instead accepted the risks that caused the injuries. The court saw “no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of unconventional treatment” for breast cancer involving selenium and dietary restrictions. Id.at 995. In Boyle v. Revici, 961 F.2d 1060 (2d Cir. (N.Y.) 1992), the complaint asserted claims for pain and suffering and wrongful death arising from nonconventional cancer therapy treatments consisting of urine monitoring, uninalyses and the ingestion of various mineral compounds to retard and reduce the size of cancerous tumors. The district court, despite the decision in Schneider, denied the defendants’ request for a jury instruction on express assumption of risk. Ultimately, the jury found in favor of the plaintiff. Appellants claimed, and the 2nd Circuit agreed, that the district court erred in failing to instruct the jury on express assumption of risk, which, if found, would be a total bar to recovery. On another note, defense counsel should consider asking the trial court to charge the jury on “respectable minority” or “two schools of thought,” if recognized in the jurisdiction. These instructions dovetail with counsel’s efforts to show that the defendant had a sound basis for choosing the treatment rendered, such as chelation therapy for alleviating arterial plaque. CONCLUSION The increasing use of CAM in health care delivery continues to raise new legal challenges. Counsel is advised to keep abreast of developments in this ever-evolving field, as it is certain to gain even more widespread importance in years to come. 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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