LA JOLLA, CALIF. – When you refer a patient to a provider of complementary and alternative medicine, keep in mind five liability management strategies, David M. Eisenberg, M.D., advised at a meeting on natural supplements in evidence-based practice sponsored by the Scripps Clinic.
The strategies, which he developed in collaboration with Michael H. Cohen, J.D. (Ann. Intern. Med. 2002;136:596-603), include the following:
Determine the clinical risk level. Decide whether to:
▸ Recommend yet continue to monitor the therapy.
▸ Tolerate, provide caution, and closely monitor safety.
▸ Avoid and discourage the therapy.
Document the literature supporting the therapeutic choice.
“It's very important to put this in the chart,” said Dr. Eisenberg, an internist who directs the division for research and education in complementary and integrative medical therapies at the Osher Institute, Harvard Medical School, Boston. “By the way, that is also true when we're using a novel or experimental drug with an inpatient. This is the same approach.”
If treatment with a certain herb is recommended, “document the choice of herb, any recommendation regarding product or brand, and any discussion regarding therapeutic dose, and associated uncertainties regarding use of the herb,” he said.
He also makes it a practice to keep a backup file of articles supporting the discussion or recommendation. “You could say this is a bit too conservative, like have suspenders and a belt,” he said at the meeting, cosponsored by the University of California, San Diego. “But I think this is the best advice.”
Continue conventional monitoring. “A lot of times we recommend something or accept that a patient is going to do something, and then we don't monitor or follow up,” Dr. Eisenberg said. “Undue reliance on CAM may lead to a charge that the patient was dissuaded from necessary conventional medical care.”
He added that maintaining conventional treatment “helps demonstrate that the physician has followed the standard of care, even if CAM is included.”
Provide adequate informed consent. Describe the risks and benefits of using the CAM therapy and of delaying or deferring the conventional therapy, and spell out potential adverse interactions. That is a lot to consider, but such information would be helpful “in the eyes of the law if something went wrong,” he said. “You have to ask yourself, could I really defend this action or recommendation?”
Also, clear communication with the patient has been shown to reduce the risk of being sued for malpractice. “Inadequate informed consent is also a theory for malpractice liability in and of itself,” Dr. Eisenberg said.
Familiarize yourself with providers to whom you refer. Ask yourself, would I refer a friend to this person? “If the answer is 'I'm not sure,' then get some help in making the correct referral,” he advised.
Understand any regulations regarding the use of CAM therapies by your relevant state regulatory board. “You have to check the regulations and scope of practice,” he said. “From a conservative legal standpoint, referring to somebody who does not own a license to treat a patient is risky business. Don't do it.”
He pointed out that, in general, a physician is not liable merely for making a referral to a specialist. But he cited three exceptions to the general rule:
▸ The referral led to delay or deferral of necessary medical treatment. “Do your day job first,” he said.
▸ The referring provider knew or should have known that the referred-to provider was incompetent.
▸ The referred-to provider is considered to be the physician's agent, either because state law requires supervision or an extended form of consultation, or there is a “joint treatment” agreement between the physician and the CAM provider.
Dr. Eisenberg also discussed the notion of a “legal catch-22” when referring a patient for CAM.
For example, if a physician seeks a distant, independent contractor type of relationship with a CAM provider, “there is probably less shared liability risk, but there is probably more risk of harm to the patient because you're referring to a stranger,” he noted.
“Conversely, there is higher risk of shared liability if you refer to CAM providers you know or have an ongoing professional relationship with, but there's probably less chance of harm [to the patient] because you're involved.”