Liability for Non-Traditional or Alternative Health Care Practitioners
Most of the time, when we think about medical malpractice, we think exclusively about physicians. It makes sense to a degree; most of the medical issues we encounter are solved by a doctor of some kind. However, especially in more forward-thinking places like California, many people go to alternative health care practitioners such as acupuncturists, massage therapists and naturopaths, either instead of or along with seeing a traditional physician. The law regarding the liability of these professionals is somewhat unsettled. Still, anyone going to any kind of health care professional should know their options.Who is an “Alternative Practitioner”?
Depending on the state in which you are located, the definition of “alternative practitioner” or “alternative health care professional” may differ. In California, the law generally states that anyone who purports to perform a wellness-related service that complies with the law, but does not have a physician’s or surgeon’s license, qualifies as a practitioner of alternative medicine.
California’s laws on who may practice as a “healing arts practitioner” and who may hold themselves out as being in the practice of medicine are quite strict. Those who are deemed to be practicing medicine without a license are subject to fine and up to one year in jail. Generally, if you visit a practitioner of alternative medicine, they are required to present you with certain information in order for their practice to be considered ethical and appropriate. If you are not provided with any of the following, you may consider it a red flag.
- A disclaimer stating explicitly that they are not a physician, and not licensed by the state, nor are the services they provide;
- A statement characterizing the treatment they perform as either replacing or complementary to services offered by the state (Western medical services, generally);
- The nature of the services they will provide to you;
- (Upon request) The theory or ideas behind the treatment they are proposing; and
- Their educational and/or professional background and any relevant credentials.
Upon receiving this information, you must verify in writing that it has been received. This verification system is intended to serve as a sort of assumption of risk, making it clear that the services you receive from, for example, an acupuncturist, are not held to the same legal standards by the state as those received from a licensed physician would be.Malpractice Insurance and Bringing Suit
Malpractice insurance is coverage that may be carried by all health care practitioners, not just physicians, in order to mitigate the costs associated with alleged medical malpractice. Alternative practitioners are no exception. Currently, there is no requirement in California that alternative practitioners carry malpractice insurance, but it is generally suggested. There are numerous specialized professional associations that offer malpractice coverage as a member benefit, and most practitioners take advantage of such offers.
Some people profess themselves wary of alternative medicine because they do not believe that practitioners will be held liable without malpractice insurance. This is generally not the case. Nothing in California law prevents people harmed by alternative medical practitioners from bringing any civil suit where appropriate. Any practitioner may be sued if their conduct is believed to rise to the level of negligence or recklessness.
For example, in 2010, two “autism specialists” were sued for negligence, lack of informed consent and intentional misrepresentation, among other causes of action, when a father brought suit after his son was exposed to chelation therapy, an unproven and allegedly dangerous method of “treating” autism. The defendants were doctors, but their insurance did not cover the willful nature of their acts. The suit was eventually withdrawn, but not before several damning facts had come to light which seemed to heavily favor the plaintiff's case.Contact an Experienced Attorney
While the regulation of alternative providers is a somewhat new and evolving field, the experienced San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. have done our best to stay updated on each new development. If you have been injured by a practitioner of alternative medicine, we may be able to assist. Contact our office today for a free consultation. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Mateo, Alameda, Monterey and San Benito.