Risk of Malpractice Claims for Practitioners of Natural Medicine: and How to Mitigate Frivolous Suits Before They Start
Jeffrey Segal, MD, JD
There is no question that naturopathic medicine is on the rise. Today, more people than ever are seeking naturopathic medical care, and naturopathic medical schools are growing at record rates to accommodate the increased demand for naturopathic education. The number of practicing NDs has tripled over the past 10 years, and more than 80 million Americans turn to complementary and alternative medicine every year according to March 2002 data from the Institute for Health & Healing at California Pacific Medical Center, San Francisco (http://www.cpmc.org/services/ihh/).
With the greater acceptance of natural medical treatments, an increase in malpractice claims against practitioners of natural medicine is inevitable. Homeopathic practitioners and NDs each had an average of 1.0 malpractice report made against them in the United States between 1990 and 2003 (2003 Annual Report, National Practitioner Data Bank, US Department of Health and Human Services [http://www.npdb-hipdb.hrsa.gov/resources/annualRpt.jsp]). By this statistic, it is only a matter of time before you, dear reader, are sued as well.
Indeed, physicians who offer unconventional therapies may be particularly vulnerable to malpractice claims because in many cases the patients who seek such treatments have conditions that are not amenable to orthodox therapies. Treatments considered outside the norm of “standard of care” in Western medicine often come with a disconnect between what patient expectations are and what can be delivered. In addition, colleagues who do not understand what NDs do may transmit doubt to patients, leaving NDs more vulnerable to malpractice interpretation.
Practitioners of natural medicine must be cognizant of the new risks they face, but these risks can be mitigated by proper planning and clear judgment. Physicians should consider establishing crystal clear rules for their patients by contract before treatment is initiated, particularly for the following 3 key issues.
If a suit is brought against any physician, it is critical to ensure an expert witness in the same field of medicine. If the plaintiff’s expert does not understand naturopathic medicine, it is unlikely that he or she will view the ND’s position favorably.
Contracts can ensure, when suits arise, that proper expert witnesses are used on the stand. Medical Justice (www.medicaljustice.com) provides a template for plan member physicians, enabling patients to sign a contract before receiving any care. That contract states that, should there be a legitimate dispute, each side will use a board-certified or credentialed expert in the same specialty who is a member of and follows the code of ethics for that specialty. Just using these contracts can deter unwarranted litigation.
Demand for Refunds
Another issue is the demand for refunds. Most naturopathic practices operate on a cash pay system with patients. Patients who pay out of pocket are more likely to demand a refund when the results they were anticipating were not, in their opinion, achieved. In addition, there is often the implicit threat of lawsuit if a refund is not given.
This type of problem is unique to physicians in the cash pay business. On first blush, it might seem reasonable to give the patient his or her money back in exchange for assurances that the matter is closed. However, a refund can be improperly construed as a tacit admission of guilt and can be manipulated by a clever plaintiff’s attorney to support the argument that the physician would never have given the refund unless he or she was guilty of malpractice.
For this reason, an ND who chooses to give money back to an unhappy patient should think strongly about tying the payment to a full and complete release. The patient agrees in this release that the exchange of money means there cannot and will not be a claim for medical malpractice. Medical Justice provides a template for such a release. Granted, there are nuances that must be considered, such as what a state’s board of medicine rules are and whether such a payment is reportable to the National Practitioner Data Bank. Medical Justice members are walked through their individual scenario step by step.
Internet Rating Sites
The third issue facing NDs today is the Web. The hallmark of the Internet is its ability to facilitate the free exchange of ideas. However, the ease with which information is proliferated increases the damage caused by false or harmful information, stretching the bounds of defamation. Online erroneous statements may linger for months or even years, almost impossible to recover, amend, and remove.
Historically, if a patient was dissatisfied with care, he or she could tell friends and family. The criticism was limited to a small circle of people. With the Internet, patients need to do little more than access a growing number of physician rating sites. In 2010, there were more than 40 such sites. Furthermore, criticism can be given anonymously. Those with an ax to grind, such as competitors or disgruntled staff, can pose as patients. Another facet of the issue lies with the rating sites themselves. While transparency in medicine is a laudable goal, Internet rating sites generally lack accountability.
To make matters worse, physicians are prevented from responding to negative posts because of state and federal privacy laws. In most cases, a physician cannot even confirm or deny that the poster is a patient.
Given how important reputation is to NDs, the traditional remedy of suing for defamation because of libelous online posts is ineffective. First, many patients who post libelous comments do so anonymously. Second, the Internet service providers hosting such rating sites are generally immune from liability for defamation.
To counter this issue, we recommend that NDs consider a patient agreement to level the playing field. These agreements do not forbid postings online but instead transfer copyright of any online patient commentary to the physician. The ND is then free to enforce his or her copyright under what is known as the Digital Millennium Copyright Act of 1998, allowing the physician to control any egregious content.
We strongly encourage physicians to take any and all negative online comments seriously. If someone is complaining about your front office staff’s rude behavior, deleting that post is not going to help you improve your practice. Instead, take a hard look at your front office staff. However, for the occasional unfair posting that can potentially harm a reputation, these legal agreements work. Furthermore, patients understand the need for such a contract. Most patients sign this agreement without concern because the contract is very patient friendly, balancing the legitimate rights of patients with the reasonable concern of physicians.
In summary, practitioners of naturopathic medicine must be cognizant of the new risks they face. Liability can be mitigated by proper planning and clear judgment in these 3 key areas:
- Expert Witnesses.Physicians should consider establishing clear rules for patients in the form of a contract before treatment is given. In particular, such an agreement should detail which class of properly credentialed individuals can serve as expert witnesses in litigation.
- Demand for Refunds.As practitioners who accept cash payment for services rendered, attention must be paid to details regarding refunds.
- Internet Rating Sites.Signed agreements with patients before treatment can provide a viable solution if a patient takes to the Web with egregious grievances.
Jeffrey Segal, MD, JD,is founder and chief executive officer of Medical Justice, a membership-based organization in Greensboro, North Carolina, that offers services to deter frivolous medical malpractice lawsuits, prevent Internet defamation, and provide physicians with strategies for counterclaim prosecution. He is a board-certified neurosurgeon, a fellow of the American College of Surgeons, and a member of the American Association of Neurological Surgeons and the North American Spine Society. Run by physicians for physicians, Medical Justice offers proven services and proprietary methods to protect physicians’ most valuable assets—their practice and reputation. Medical Justice works as a supplement to conventional professional liability insurance. The frequency of frivolous suits is dramatically reduced for its plan members. For more information, visit www.medicaljustice.com or call 877-MED-JUST (1-877-633-5878).