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Informed Consent and CAM: Truth Not Optional

In three recent posts, Drs. Novella, Gorski and Atwood took the Bravewell Collaborative to task over a report on its recent survey of U.S. “integrative medicine” centers. As Dr. Novella noted,

So what is integrative medicine? When you strip away the rebranding and co-opting of features and treatments of mainstream medicine, you are left with the usual list of pseudoscientific practices that have been trying to insert themselves into mainstream medicine for decades through a series of marketing and propaganda strategies. Bravewell has positioned itself at the forefront of that effort.

Among these pseudoscientific practices listed in a chart from the report included by Dr. Gorski in his post were acupuncture, TCM, reiki, therapeutic touch, naturopathy, homeopathy and reflexology.

Dr. Novella continued,

At the end of the report, under the category ‘next steps,’ they write:

‘Providing funding for analysis of these data, which could provide important information about the efficacy of integrative medicine approaches as well as the treatment of chronic health conditions, should be a priority for funding sources and institutions.’

Let me translate that for you, in the context of the whole report: Isn’t it wonderful that integrative medicine methods are being used, now let’s go see if they actually work. If there is anything that defines alternative, complementary, integrative medicine it’s putting practice before evidence. In fact, the evidence is irrelevant to practice. Practice is philosophy-based, not science-based. Evidence is an obstacle, used only for marketing purposes, not for determining which treatments are effective. That is why they keep trying to redefine scientific evidence in medicine. They need science to change to accommodate their treatments, not conform treatments to the science.

And, as Dr. Atwood noted, in response to the claim that the IM practitioner “puts the patient at the center:”

That implies ‘patient-centered care,’ which requires that practitioners provide honest, comprehensive information about the methods in question. IM practitioners are universally dishonest about such matters. They have to be, because otherwise they’d have to tell patients the truth: that the methods are worthless.

Which, in my mind, brings up an interesting legal and ethical issue of consequence to the “integrative physician:” Does an M.D. or D.O prescribing a “CAM” treatment have a legal or ethical duty to disclose scientific implausibility as a part of informed consent process? How about lack of efficacy? My answers are “yes” and “yes.”

Informed Consent: Legal and Ethical Duty

First, a brief review of the law of informed consent. An early, and often quoted, formulation of informed consent came from the eloquent pen of Judge Benjamin Cardozo, then sitting on the Court of Appeals of New York, later to become an associate Justice of the U.S. Supreme Court.

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (1)

Courts today characterize the unconsented treatment as the tort of battery – an intentional, unconsented to touching — rather than an assault. Actions for battery may be brought when there is no patient consent or where the physician goes beyond the scope of the consent. (2)

Typical of these are “wrong site” surgery cases where the patient, for example, has consented to a right knee replacement and the surgeon instead replaces the left knee. Or, in an example of “beyond the scope of consent,” a surgeon gets into a case and decides an operation different from the one the patient consented to is necessary. The latter example can be effectively eliminated by written consent covering this situation signed by the patient prior to surgery.

However, in certain cases insufficient disclosure can negate consent, thereby subjecting the physician to an action for battery. According to the Restatement (Second) of Torts, Section 892B(2) (1979),

If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other’s misrepresentation, the consent is not effective for the unexpected invasion or harm.

Translation: if the physician knows he is mistaken in informing the patient about the treatment, or misrepresents the treatment to the patient, the patient has not effectively consented to the treatment.

As the jurisprudence of informed consent continued to develop in the last century, courts also recognized a negligence theory upon which plaintiffs could recover for lack of informed consent. Where the patient consents to a certain treatment and the physician in fact performs that treatment, but fails to disclose a material risk to the patient, and that risk materializes, the patient can sue for negligence in failing to warn of the risk. The physician’s duty to disclose has been expanded to include disclosure of other treatments available for the patient’s condition, and the risks and benefits of each. (3)

One important distinction between a battery theory of recovery and a negligence/malpractice theory should be noted. A patient cannot recover for negligence unless he has actually been harmed in some way – e.g., an undisclosed but known risk of spinal surgery causes paralysis. Under a battery theory, the unconsented touching is harm in and of itself, although the plaintiff would still have to prove damages.

When risks and benefits of a proposed treatment are disclosed, as well as the risks and benefits of other possible treatments, the patient is able to make an autonomous choice. But this leaves an important question undecided: who makes the decision as to what sort of information should be disclosed? Two standards have emerged and jurisdictions are now about evenly split between the two.

Under the “physician standard,” a physician has a duty to disclose information that a reasonably prudent physician in the same or similar circumstances would disclose. Expert testimony is required to establish the standard. Under the “patient standard,” a physician has a duty to disclose information that a reasonably prudent patient in the same or similar circumstances would consider material in making a decision about whether to consent to the proposed medical or surgical procedure. (4)

While cases brought under either standard most typically revolve around a failure to disclose risk, it is important to remember the linchpin of informed consent is patient autonomy, not a mere risk/benefit analysis. This respect for patient autonomy is not simply a legal duty the breach of which will subject the physician to liability. It is also an ethical duty which must be observed whether or not actionable harm ensues. The fact that the patient doesn’t sue the physician for battery or malpractice does not retroactively absolve the physician from breach of this ethical duty.  As Beauchamp and Childress state:

Respect for autonomy obligates professionals in health care and research involving human subjects to disclose information, to probe for and ensure understanding and voluntariness, and to foster adequate decision-making.

Further, in applying the moral duty of veracity to health care professionals, Beauchamp and Childress continue:

Veracity in the health care setting refers to comprehensive, accurate, and objective transmission of information, as well as to the way the professional fosters the patient’s or [research] subject’s understanding. Three arguments contribute to the justification of obligations of veracity. First, the obligation of veracity is based on respect owed to others. . . . [R]espect for autonomy provides the primary justificatory basis for rules of disclosure and consent. . . . Second, the obligation of veracity has a close connection to obligations of fidelity and promise keeping. . . . By entering into a relationship in therapy or research, the patient or subject enters into a contract or covenant that includes a right to the truth regarding diagnosis, prognosis, procedures, and the like . . . . Third, relationships between health care professionals and their patients and between researchers and their subjects ultimately depend on trust, and adherence to rules of veracity is essential to foster trust.(5)

Law of Informed Consent and CAM

As has been discussed many times at SBM, complementary, alternative, and integrative medicine proponents have co-opted science-based modalities, such as nutrition, exercise and stress reduction, as their own:

That’s what we here at SBM mean when we describe the ‘bait and switch’ of CAM/IM. Plausible, potentially science-based treatments are reborn as CAM/IM and then used as evidence that CAM works. They’re also the Trojan horse that CAM/IM proponents use to trick the guardians of SBM into bringing into fortress of academia. After these modalities have been accepted as ‘CAM,’ out jumps the real woo, such as ‘energy healing,’ to take over.

Here our discussion will be confined to the “real woo” and the physician’s duty of disclosure.

One feature of CAM that should be immediately obvious to the physician trained in “conventional” medicine is that CAM modalities are not based on the same sort of logically cohesive, science-based understanding of human functioning that they learned in medical school. (To say the least.) Of course, this should be a big red flag.

However, should that not be enough to stop the M.D./D.O. in his/her tracks, it is fairly simple to look at the evidence, or lack thereof, for the efficacy of CAM treatments. As has also been discussed extensively on SBM, the evidence just isn’t there for acupuncture, naturopathy, reiki, reflexology, homeopathy, subluxation-based chiropractic, and so on. We also know that lack of plausibility must be factored into any review of efficacy literature, as positive results must be viewed with reference to implausibility. In fact, SBM has made it easy for the practicing physician. He doesn’t even have to bother with PubMed or Medline searches. Much of the evidence has been expertly distilled right here on this blog.

Returning to the questions presented, must the M.D. or D.O. legally disclose the lack of plausibility and efficacy evidence for CAM procedures before recommending or performing them?

In answering that question, consider this hypothetical. An FDA-approved drug – we’ll call it “Mendax” — is later discovered to have gained that approval through manipulation of data in clinical trials. Those trials actually show that Mendax lacks efficacy for its proposed use. But the deception goes even deeper than that. The description of Mendax’s proposed mechanism of action is shown to have been falsified. As it turns out, it is implausible that Mendax would work as proposed. Although Mendax has been removed from the market, Dr. A has a supply of trial packets of Mendax furnished by a drug rep prior to removal from the market.

Putting aside other legal and ethical questions raised by prescribing a drug removed from the market, would a reasonably prudent physician in the same or similar circumstances disclose the fact that Mendax’s proposed mechanism of action is implausible and that it is not efficacious for its intended use? Would the reasonably prudent patient want to know this information in making an informed choice as to whether to take Mendax?

When put in the context of “conventional” medicine, these questions seem silly. Of course the physician would have to disclose this information. Of course the patient would want to know this in order to make an informed choice. What, then, is it about CAM treatments that would change the answer to these questions? What about CAM might exempt a physician from the duty to disclose implausibility and inefficacy?

The only possible argument I can think of is the fact that the CAM modality in question might be within the legal scope of practice of the physician or the CAM practitioner to whom the patient is referred. But that would require reading into all the physician and CAM practice acts an implied statutory abrogation of the well-developed law of informed consent. Under normal rules of statutory construction, one could not read such a purpose into these statutes without a more explicit directive to do so on the part of the state legislatures. In other words, if the state legislatures were aiming to substantially alter the law of informed consent, they would have said more directly that is what they were doing. (6)

Ethical Duty of Informed Consent and CAM

Although it is not my field, medical ethics appears, not surprisingly, to require the same result. Professor Kathleen M. Boozang has written that certain treatments should not be offered to patients, even if the physician believes they are unlikely to result in harm to the patient. According to Prof. Boozang, these include any treatment which:

a. is implausible on a priori grounds (because its implied mechanisms or putative effects contradict well-established laws, principles, or empirical findings in physics, chemistry or biology),

b. lacks a scientifically acceptable rationale of its own,

c. has insufficient supporting evidence derived from adequately controlled outcome research, or

d. has failed in well-controlled studies done by impartial evaluators and has been unable to rule out competing explanations for why it might seem to work in uncontrolled settings. (7)

Prof. Boozang refreshingly calls such treatments “quackery” and says unequivocally that “doctors should not truck with quackery” and that “physicians should not offer or accede to patient demands for unproven treatments.” (8) In an observation that tackles head on the notion that patients see CAM as more responsive to a need for intangibles like comfort, she states:

Patients have a range of expectations of their physicians, with different patients looking for different things, which may include hope, compassion and comfort. However, patients universally seek effective and safe treatment; they want to be cured. Consequently, the legal and ethical systems that establish the parameters within which physicians practice must demand at the very least that physicians utilize their skills and knowledge to offer patients treatment which they reasonably believe will actually treat the condition from which they suffer. This minimum requirement precludes physicians form offering as medicine something that is not – even if it will, in a psychological or emotional sense, make the patient ‘feel better.’ To do otherwise misleads the patient about what ultimately matters — that she is receiving treatment for her condition. . . . The very fact that it is a physician who prescribes the therapy will endow the treatment with a false sense of legitimacy. . . . [Patients] do not expect physicians to succumb to fads or illegitimate pressure to provide treatment that has no reasonable chance of helping the patient. In medicine, that hope is inspired by scientific proof, whether or not the treatment is conventional or alternative. (9)

If offering CAM to patients is ethically contraindicated, and the basis of that conclusion is, in part, a physician’s fiduciary obligation to be truthful with their patients, and the corresponding desire of patients for treatments that are actually beneficial, then, a fortiori, a physician offering implausible and unproven CAM treatments would have an ethical obligation to tell patients about that very implausibility and lack of efficacy.

Conclusion

The intrusion into “conventional” medicine of implausible and unproven treatments by supporters of CAM, and those who will benefit from their support, does not alter the ethical and legal obligations of physicians to be truthful with their patients. Medical ethics demand that such treatments not be offered. If they are recommended, ethically the physician has, at the very least, a duty to disclose implausibility and lack of evidence of effectiveness. Legally, physicians offer such treatments at the risk of being sued for battery based on the claim that patient consent is nullified by misrepresentation if implausibility and lack of effectiveness are not disclosed. Alternatively, if the CAM treatment results in harm, physicians risk suit under a negligence theory. It should be easy enough to prove by expert testimony, under the physician standard of disclosure, that implausible and ineffective treatments would not be offered by a reasonably prudent physician. Under the patient standard, a jury would be hard pressed to conclude that a reasonable patient would find it immaterial to that the proffered treatment lacked scientific plausibility and evidence of effectiveness.

 

Notes

(1) Schloendorff v. The Society of New York Hospital, 211 N.Y.125, 129-30 (1914).

(2) Jesson LE, Tovino SA, Complementary and Alternative Medicine and the Law, Carolina Academic Press (2010), 157-178.

(3) Id.

(4) Id.

(5) Beauchamp TL, and Childress, JF, Principals of Biomedical Ethics, Oxford University Press (5th Ed. 2001), 64, 283-284.

(6) See, e.g., TVA v. Hill, 437 U.S. 253, 189-191 (1978).

(7) Boozang, KM, Western Medicine Opens the Door to Alternative Medicine, 24 Am. J. L. and Med. 185, 204 (1998).

(8) Id., at 204, 208.

(9) Id., at 205, 209.

 

Posted in: Acupuncture, Chiropractic, Energy Medicine, Homeopathy, Legal, Medical Ethics, Naturopathy, Science and Medicine

Leave a Comment (37) ↓

37 thoughts on “Informed Consent and CAM: Truth Not Optional

  1. Narad says:

    One important distinction between a battery theory of recovery and a negligence/malpractice theory should be noted. A patient cannot recover for negligence unless he has actually been harmed in some way – e.g., an undisclosed but known risk of spinal surgery causes paralysis. Under a battery theory, the unconsented touching is harm in and of itself, although the plaintiff would still have to prove damages.

    I’m not sure that this clarifies things for the non-lawyer. The idea is that “damages” are the monetary realization of “harm,” and battery as compared with negligence requires demonstrating intent?

  2. sarah007 says:

    Jann’s article said “formulation of informed consent came from the eloquent pen of Judge Benjamin Cardozo, then sitting on the Court of Appeals of New York, later to become an associate Justice of the U.S. Supreme Court, he said”and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (1)”

    This whole article is interesting in a way as it assumes the medics have the science. With regard to surgery there is virtually no EBM for almost all of it, it is all practice before evidence so by the earlier dissing of CAM on this basis you have shot yourself in the foot. Ouch!

    “Much of the evidence has been expertly distilled right here on this blog.”

    You bet Jann and this is what one calls publication bias. So tell us if ‘treatments’ are supposed to ‘treat’ conditions and the patient wants a cure how do we link high blood pressure to defiency in beta blockers. The medication certainly doesnt cure the patient, far from it, blocking external homeostatic pathways like the adrenal one implies that there is a problem or issue with the adrenal output, surely we should be looking there for a solution, not just blocking the messenger.

    There is a lot of crap out there, yes, but a lot of it is firmly in the ‘medica science dept’ and trying to dualise the discussion into CAM or mainstream isn’t very helpful because it means you are forced to support ideas like swine flu pandemics. This is definetely a good example of how blind support has brought the mainstream into ‘laughing stock’ status and weakens your position of comment.

    “It should be easy enough to prove by expert testimony, under the physician standard of disclosure, that implausible and ineffective treatments would not be offered by a reasonably prudent physician.”

    Ok you have a large problem here. Let’s say I have helped perhaps 100 people with chronic skin condtions recover by using alternative methods, (ie not using steroids, TNFI’s or PUVA) if it works every time how are you going to find someone to bring a lawsuit to test this in front of a jury? Well you aren’t. The method won’t be exactly the same every time, it is pateint centred, there is no presription but there is a lot of taylored advice. All of the patients come by recommendation so there is no advertising either, if it didn’t work no one would come.

    Ok you may find a Brian Deer who is an employee of one of the greatest media mafia moguls in the world with family on peer review panels and shares in vaccine manufacturers, to bring a law suit, but finding a patient will be very hard. In fact in the MMR farce not one patient complained, only Brian! On the other foot if we take medical disasters all of the lawsuits are persued by patients, none by companies and there are millions of people who have been stuffed by medical science, with the alt med world where are the bodies to compare? Most of the complainers against doctors who use alternative methods comes from colleagues, very rarely the public.

    This may frustrate your attempts to tap into this world but that is your problem, a scientist would be interested in results, it is impossible to take part in an RCT when 50 people who come with arthritis may require 50 taylored approaches to solving the same problem. The reason proper alternatives survive is because they work, they don’t have sexy marketing, political friends or big companies funding them really.

    There are no prescriptive treatments either, that is a medical construct, however hard you try most of what is public on the web is the tip of the iceburg the rest is happily working well with a happy public who are grateful that there are still people who are really good at alternate practice and I genuinly feel sorry for the obvious frustration you have with all of this septic stuff.

  3. BillyJoe says:

    sarah,

    “With regard to surgery there is virtually no EBM for almost all of it, it is all practice before evidence”

    You think?
    Take appendicectomy. Before surgery was invented, what do you think happened? Patients died. So, faced with the same symptom complex and a moribund patient, somone got the idea to take a look see what’s going on. He finds an inflammed appendix right where the pain was located. He removes the appendix. The patient lives. I would say that was evidence supporting appendicetomy for a patient with a certain symptom complex, wouldn’t you?
    Lesson: There is more to EBM/SBM than just RCTs.

    “trying to dualise the discussion into CAM or mainstream isn’t very helpful”

    Exactly.
    As they say on these blogs: there is only medicine that works (science-based medicine) and medicine that doesn’t work (non science based medicine)

    “it is impossible to take part in an RCT when 50 people who come with arthritis may require 50 taylored approaches”

    Dead easy.
    (Think specifically about homoeopthy here)
    Let 50 different practitioners set up 50 individualised treatments for 50 different people. Give 25 of them the individualised treatment and 25 of them a placebo instead. Compare. If there is no difference, that is evidence that individualised treatment programs do not work.

    “a happy public who are grateful that there are still people who are really good at alternate practice”

    There once was a happy public who were grateful there were people who relieved their ailmants with bloodletting. I think you will agree that that didn’t make bloodletting a useful treatment.

    (There is a lot more to respond to in your comment, but that will so for now.)

  4. sarah007 says:

    “Dead easy.
    (Think specifically about homoeopthy here)”

    I am not a homeopath and that isnt alternative anything anyway.

  5. sarah007 says:

    “there is only medicine that works (science-based medicine)”

    Well sorry but this is a silly statement. The idea that we need medicine to be well is an artificial construct for starters.

    “There once was a happy public who were grateful there were people who relieved their ailmants with bloodletting. I think you will agree that that didn’t make bloodletting a useful treatment.”

    Yes but Galen the father of bleeding was an orthodox doctor in his time! There are people today still trying to ply the methods of Jenner ie pus for health.

  6. David Gorski says:

    “With regard to surgery there is virtually no EBM for almost all of it, it is all practice before evidence”

    What a load of nonsense. Take my specialty, for instance, breast surgery. I could bury you in randomized trials about all sorts of aspects of breast surgery. In fact, the NSABP trials were among the best and earliest truly large scale, multicenter trials, and they define a lot of what we do.

  7. Jann Bellamy says:

    @Narad:

    “I’m not sure that this clarifies things for the non-lawyer. The idea is that ‘damages’ are the monetary realization of ‘harm,’ and battery as compared with negligence requires demonstrating intent?”

    Yes, although the law on what “intent” means in a battery case is muddled, but that’s a whole law review article in itself.

  8. sarah007 says:

    narad said “Under a battery theory, the unconsented touching is harm in and of itself, although the plaintiff would still have to prove damages.” But where are the bodies with CAM Narad, it’s all theoretical, we don’t have queues of patients complaining or taking out law suits, do we?

    Billy said “Take appendicectomy. Before surgery was invented, what do you think happened? Patients died.” that is an anecdote Billy, not everyone died.

    Spinal surgery is a disaster, 60% of people with replacement knees still have pain for the rest of their lives.

    In fact placebo knee surgery has a better outcome than ‘real’ knee surgery.

    Bily said too “There is more to EBM/SBM than just RCTs.” Yep their is, publication bias, funding bias, politcal bias and of course shairholders, newspapers to sell ie,”we are 10 years closer to a possible cure for cancer!

    So Much to it it’s amazing docs got time to go on that conference in the Maldives to learn how to prescribe SSRI’s that now, and always have, work less well than placebos, but they still get prescibed.

    David 50% of breast cancers get better with no treatment, how do you triage that sir? Charles Bankhead MedPage Today November 21, 2011 Reviewed by Dori F. Zaleznik, MD; Associate Clinical Professor of Medicine, Harvard Medical School, Boston. Citing evidence of overdiagnosis and unnecessary testing and treatment resulting from mammographic screening, Peter C. Gotzsche, MD, of the Nordic Cochrane Center in Copenhagen, wrote, “If screening had been a drug, it would have been withdrawn from the market.”

  9. mdstudent says:

    Reason, logic and evidence are clearly incapable of changing certain posters opinions. In such cases I wonder if it wouldn’t better to completely refrain from engaging them as difficult as that may be. If it becomes apparent that they’re not here in search of education I think it’s very possible that continual attempts on our parts to that end will only serve in further radicalizing them.

  10. rork says:

    I second mdstudent. D’ya not know a gallop when you see it?

  11. I disagree with mdstudent and rork (although I do agree sara007 is doing the Gish gallop). Arguing with illogical positions on the Internet, on sites like this, is not about converting the irrational from their dearly-held dogmas. It’s about educating the people reading who have not yet made up their minds. This was extremely helpful to me, as a proto-skeptic, in teaching me how to think and how to recognize a good argument from a bad argument, a logical fallacy from a cogent point.

    Keep up the good fight, peeps!

  12. sarah007 says:

    With regard to ‘informed consent’ I don’t know any parent who has had a doctor read through drug reaction sheets prior to any vaccination, truth is not optional here either.

    You have neither logic, reason or evidence presented therefore I and many others are waiting.

    You write from an ancient time when everyone believed in the doctor, thanks to the internet and common sense many are seeing through this dying attempt to claw back some sanity and you are failing.

  13. mdstudent says:

    @ Perky Skeptic

    Fair enough.

    Personally, I’ve had my fill.

  14. The comment quality has rapidly decreased. It used to be enjoyable to see decent discourse in the comment threads. Now its the same tired troll posting idiotic nonsense constantly. All you have to do is put their IP in the blacklist in Dashboard -> Settings -> Discussion -> Black list.

  15. mdstudent says:

    @ SkepticalHealth

    I wouldn’t go as far as blacklisting someone unless they’re in clear violation of discussion rules. What I’m trying to say is that when logic, reason, and evidence CONSISTENTLY fail to chase away someone’s ignorance, myths, and fallacies it’s probably best to just leave them alone.

  16. lilady says:

    David 50% of breast cancers get better with no treatment, how do you triage that sir? (Citations?)

    Does the Troll mean this article about the debate centered on breast cancer screenings…which has nothing to do with the survival rate of untreated breast cancer?

    http://www.medpagetoday.com/HematologyOncology/BreastCancer/29829

  17. Harriet Hall says:

    Perky Skeptic said “Arguing with illogical positions on the Internet, on sites like this, is not about converting the irrational from their dearly-held dogmas. It’s about educating the people reading who have not yet made up their minds. This was extremely helpful to me, as a proto-skeptic, in teaching me how to think and how to recognize a good argument from a bad argument, a logical fallacy from a cogent point.”

    It is extremely time-consuming and frustrating to play whack-a-mole with trolls, to rebut every nonsensical argument and correct every false statement of a repeat offender.

    What if we put some kind of disclaimer on every thread a repeat offender infests, saying her comments have consistently misrepresented the facts and her arguments are irrational, that we lack the time to respond to each irrationality, but that if any other commenter thinks she has made a good point and asks about it, we will gladly explain why she is wrong.

    Would that serve the purpose, do you think?

  18. lilady says:

    @ Dr. Hall: I’m all in for your disclaimer, especially for Trolls who continually derail the thread, offer up no citations and cherry-pick quotes from those non-citations.

    We have a terrific mix here of health care professionals/scientists and “civilians” who engage in civilized cogent discussions…why should we permit trolls, whose sole purpose is to post their delusional off-topic meanderings?

  19. Todd W. says:

    Jann,

    Good article looking at the legalities of prescribing CAM. A question occurred to me, though. What “standard” would a judge or jury apply in a case involving a CAM modality? For instance, an acupuncturist has likely only been schooled in acupuncture ideas and practices. Their education has been slanted from the beginning in favor of acupuncture, essentially brainwashing them to believing that acupuncture actually does something beyond placebo effects. Would the court take a “what a reasonable physician should know/do” or a “what a reasonable acupuncturist should know/do”? The matter is made all the more difficult when many states actually license acupuncturists to practice, separate from any medical degree requirements.

    I’m sure that any defense would focus on this professional distinction between physicians and alt-med practitioners, probably using an analogy akin to “you wouldn’t go to a mechanic for information on acupuncture, so why would you go to any other person not trained in acupuncture”? How would one get around such an argument to convince the judge or jury?

  20. sarah007 says:

    “We have a terrific mix here of health care professionals/scientists and “civilians” who engage in civilized cogent discussions…why should we permit trolls, whose sole purpose is to post their delusional off-topic meanderings?”

    I think you are deluded by some weird believe system here. So if one can’t do anything without evidence and you can get evidence unless you do something where does one start. Giving painkillers to everyone in pain and little else makes no sense.

    “How would one get around such an argument to convince the judge or jury?” Convince the jury of what? either there is a problem or there isn’t judging by the lack of patient complainents there isn’t a problem. I thought this site was about science but again and again we see medico belief system projections, I can’t believe you are serious. Anyone making up their mind about what, judging by your hit rate and Mr Mercola the answer is obvious.

    “I’m sure that any defense would focus on this professional distinction” defense against exactly what, where are the patients who are complaining about accupuncturists!

    “It’s about educating the people reading who have not yet made up their minds.” and who is this silent majority, please keep this site up because it certainly shows the septic camp in a brilliant light.

    “to rebut every nonsensical argument and correct every false statement of a repeat offender. ”

    “What like there is no swine flu”

    I came here because I had not made up my mind on many of these issues and wanted to play devils advocat in order to see how you dealt with an anti medicine position. What I have found is bias, rudeness and very little science so thank you for making that clear. If I was a marketing auditor and you asked how to improve your hit rate I would tell you to dump the 4 or 5 posters here who claim to be scientists and you might get some improvement.

    Doctors and consultants used to have bad press, arogant, self centred and basically not very good at what they do and paid too much. Little has changed and if this site is supposed to represent the bees knees of critical debate you’re fucked really.

  21. Jann Bellamy says:

    @ Todd W.

    The standard of care in CAM cases is and interesting and developing area of the law. I hope to do an entire post on the subject at some point. In answer to your question, physicians are held to a standard of other reasonably prudent physicians in the same specialty. The same is true of other health care professions — a reasonably prudent person in their profession and specialty (if there is one).

    As for a physician practicing acupuncture, I don’t know of any case that has decided what the standard would be, but I imagine that if he held himself out as competent to perform acupuncture then he would be held to an acupuncture standard of care in performing acupuncture. (It is my understanding that physicians who want to practice acupuncture have to go through some sort of training.) However, to the extent he is practicing medicine in diagnosing and treating the patient, he would be held to a physician standard of care, and he could not ignore medical issues just because he is performing acupuncture on the patient. For example, if in the course of practicing acupuncture a medical problem arose (e.g., a collapsed lung from an acupuncture needle) he should be held to a physician standard of care in responding to that, whereas a non-M.D. acupuncturist would still be held to the acupuncturist’s standard of care.

    If this doesn’t answer your question, please let me know.

  22. BillyJoe says:

    “What I have found is bias, rudeness and very little science”

    I wasn’t rude before but, as a result of your last few postings, I’ve changed my mind.
    Now I’m going to be very rude: #v<|< @##

  23. kathy says:

    SkepticalHealth posted, “The comment quality has rapidly decreased. It used to be enjoyable to see decent discourse in the comment threads. Now its the same tired troll posting idiotic nonsense constantly.”

    Agreed. The articles are always interesting, but following up the discussion used to be fascinating, with all sorts of opinions and ideas from some really articulate and well-educated people. Now large chunks of the discussion mainly just one person’s opinions and ideas, with a lot of the other posters being sucked along trying to unmuddle the muddiness of her mind. A really great forum is being hijacked.

    The troll’s certainly chosen her audience well … many (most?) of you are medics of one sort or other and keen to help and heal. So you keep on anwering even when all you get is rudeness and insults in return. Maybe you need to exercise triage here and ask if this troll wants/can be helped?

  24. mattyp says:

    As an almost chiropractor (final year, seeing patients as an intern at a university clinic), the consent section of the visit is as important as the history taking, the differential diagnosis, the physical examination, and the treatment that follows.

    Believe it or not, we are instructed to discuss risks – real risks – whether it be of spinal manipulation, soft tissue techniques, rehabilitation exercises. We must discuss realistic expectations based on best evidence available. We are also expected to discuss OTHER TREATMENT OPTIONS – such as medical management (which is not allowed to include the age old CAM argument that doctors will just throw a painkiller at you), physiotherapy, surgical management, and the expected natural history of their condition.

    Points of interest:
    - I have not mentioned the word “subluxation” once during my brief internship. If I were to, I’m reasonably sure my supervisor would run me out of the building. Plus, if I used the term subluxation, I’m pretty sure that would constitute lying to a patient.
    - I have referred several patients for a medical opinion. This had the most realistic chance of a favourable outcome, and reduced the risk of an unfavourable outcome (forgive the ‘Strayan spelling).
    - I have even had patients who have been recommended for spinal surgery come to me as a last resort to try to avoid surgery. I’ve had to tell these patients that treatment with me for that particular condition will do nothing.

    I’m not sure if I can speak for ALL of my classmates there, but I’m hopeful I am the norm, not the exception.

    Oh, and for those of you that despair at anti-vaxers, the struggle continues:

    http://www.smh.com.au/nsw/health-watchdog-cannot-warn-public-about-antijab-group-court-20120224-1ts6a.html

    Regards,
    Matt

  25. Jann Bellamy says:

    @mattyp:

    “I have not mentioned the word “subluxation” once during my brief internship. If I were to, I’m reasonably sure my supervisor would run me out of the building. Plus, if I used the term subluxation, I’m pretty sure that would constitute lying to a patient.”

    Interesting comment. You are not the first chiropractor/student commenting at SBM to say that the chiropractic subluxation doesn’t exist. Yet in the U.S. state laws define the practice of chiropractic as the detection and correction of subluxations, subluxation diagnosis and treatment is taught in chiropractic colleges, and is practiced by chiropractors, who continue to advertise it for conditions such as allergies, asthma, bed wetting, and so on. There is a battle in the U.S. between those who want to get rid of the subluxation and those who are loyal to it, most recently played out in the re-accreditation of the Council on Chiropractic Education by the U.S. Dept. of Education.

    Although there are a number of posts on these issues, this one distills the problem in a single reference:

    Sam Homola, D.C., Subluxation Theory: A Belief System That Continues to Define the Practice of Chiropractic.

    http://www.sciencebasedmedicine.org/index.php/subluxation-theory-a-belief-system-that-continues-to-define-the-practice-of-chiropractic/

  26. nybgrus says:

    @kathy, lilady, skeptichealth, et al:

    I agree completely. Though I am a bit torn on the concept. When I first came to this forum over 2 years ago now, I cut my teeth on exactly these sorts of trolls. Most of whom have actually gone for the most part (when’s the last time we heard from Sid Offit or Th1Th2?). I remember at first I didn’t even know what a “troll” was and thought that Sid was genuinely confused on the topics. It was a rude awakening to realize otherwise. After that, going through and responding not only sharpened my rhetoric but also helped me learn immensely. I can genuinely say a decent bit of my medical education was through this forum and part of that was my engagement with trolls.

    Having said that, I would also agree that this particular troll is among the worst – not in terms of “troll-ishness” but in terms of learning capacity. Her spewing effluence is so trite and superficial and on topics that are so banal that (to me at least) there is little learning opportunity in correcting things. Sid and Thingy at least touched on deeper topics of stats, pop health, and immunology, and getting into a riposte on those topics yielded a learning experience for me. But explaining to Sarah that hypovolumia does not lead to hypertension… well, not much there.

    She will go away eventually. My suggestion will be to have completely paralell conversations for those interested in maintaining a high level of discussion. I was doing so, and then deigned to respond to an actually valid point that she raised, thinking that would be a reasonable course to stimulate better conversation. It failed. I learned.

    In any event, that’s my two cents.

  27. nybgrus says:

    @mattyp:

    I’ll second Jann’s comment. We’ve had many a DC come this way defending all sorts of ludicrousness.

    Since you seem new here, I’d suggest you read a few of the articles around these parts on chiropractic (if you haven’t already), but I’ll sum up the position I have developed over the past year on it.

    In a nutshell, the issue is that chiropractic historically has no valid basis, and the evidence base for what does actually work is very minimal and narrow. There are a subset of chiropractors (lets call them science based chiros) who stick within that narrow evidence base and offer some positive service to patients. However, there is absolutely no way to tell a priori who those may be. As a physician I could not distinguish you specifically from any of your classmates or colleagues and as such cannot possibly refer a patient to chiropractic care. That is a sytemic issue promulgated by the professional bodies and accrediting agencies of your field.

    It’s a pretty bad position to be in, IMO. The best advice I could offer is to make yourself and your ideals personally known to physicians to establish a referal base and try and lobby for positive science based changes in your profession at large.

    Best of luck!

  28. This is sadly a quote of a quote of a quote. BUT.

    “IM practitioners are universally dishonest about such matters. They have to be, because otherwise they’d have to tell patients the truth: that the methods are worthless.”

    I don’t think a lot of alternative practitioners are lying. I think they truly believe that their methods work, and that they work as well as or better than conventional science based methods. I have a close friend who was “Trained” in “reflexology” and was “helping” lots of people. She was truly overjoyed to be doing it, like she had found her calling in life, and felt like she was really making a difference. After having a horrible experience working in the medical office of a podiatrist where the staff was catty and the doctors were condescending and sexist, she had finally found a way to “use her college degree and desire to help others” in an environment that was pleasant for her personality type. She wouldn’t be doing reflexology if she didn’t believe it was legit.

    What is frustrating is, it probably isn’t doing jack squat and if I were to give her any evidence that it didn’t do jack squat, she would probably dismiss it in some way and continue practicing it, because what she “sees” with her patients, that they are improving and getting help from the reflexology, is enough for her to believe it despite evidence to the contrary. These are very faith based philosophies, which means they are pretty hard to shake. She’s not dishonest. She is being very honest about something she believes is true.

    As far as why people dismiss evidence? Faith in something compelling, especially related to “curing the human condition” is quite strong. Not sure what to do about that.

  29. mattyp says:

    Jann Bellamy said:

    “There is a battle in the U.S. between those who want to get rid of the subluxation and those who are loyal to it, most recently played out in the re-accreditation of the Council on Chiropractic Education by the U.S. Dept. of Education.”

    At the institution where I am learning, certainly from a teaching point of view, is that subluxations do not exist. It is interesting the way they teach this though. It is not taught that subluxations do not exist and that we are just supposed to believe it – it is normally done by way of an assignment – usually a research project or a systematic review on the topic of subluxation, and let us find out for ourselves. Now, as usual, there will be people who cherry pick the data to reinforce a prior held view (Mark Crislip has a quote about Metas being useful only if they back up your prior belief), but I would say close to 90% of students come away fully aware that there is no biologic plausibility for the subluxation as defined by the CAA, the WHO and other various bodies that include subluxations in their definition of chiropractic.

    What is interesting, is that a large portion of students get to final year, and they still CANNOT define exactly what it is they do.

    Also, the first thing that I did after discovering this blog was read EVERY post I could find regarding chiropractic, homeopathy (why do the two seem to go hand-in-hand down the yellow brick road?), vaccination (sigh), etc.

    Nybgrus said:

    “It’s a pretty bad position to be in, IMO. The best advice I could offer is to make yourself and your ideals personally known to physicians to establish a referal base and try and lobby for positive science based changes in your profession at large. ”

    I am trying to do this already at final year of study level. My supervisors and student colleagues all know that I am trying to be an evidence and science based practitioner. It’s interesting though. No matter how obvious it is to my peers, there’s still the group that still “maintains the rage” regarding subluxation, or vertebral subluxation complex.

  30. Jann Bellamy says:

    @nobodyyouknow

    “I don’t think a lot of alternative practitioners are lying. I think they truly believe that their methods work, and that they work as well as or better than conventional science based methods.”

    I agree that some are not lying, although legally “reckless disregard for the truth” can be the equivalent of actual lying, as in the law of fraudulent misrepresentation. It raises an interesting question: to what extent can one ignore science in making representations about the mechanism of action and effectiveness of treatments and not be ethically and legally culpable for those representations?

    This faith in implausible and ineffective treatments by both practitioners and the public, despite the evidence, is another reason, in my view, that they, by law, shouldn’t be allowed.

  31. lizditz says:

    My personal response to the current troll: ignore.

    I have two questions for @mattp: what do chiropractors do that physical therapists can’t or won’t do? and Why did you pick chiropractic school over getting a degree or advanced degree in physical therapy?

  32. mattyp says:

    @lizditz:

    1) In Australia, I’m not sure what we would call a physical therapist. Would it be physiotherapist, occupational therapist? I think that in 2012, the two fields are very similar. For starters, OTs and Physios are given access to hospitals in Australia. In fact, many OT and physio services are covered by medicare when performed in Australian hospitals.
    There are two key differences. The first, I think is the history. Chiropractic was defined and developed in Australia with a belief in subluxations and innate intelligence to maintain optimal health, whereas I am not directly familiar with the history of physiotherapy or OT, but from my brief readings OT is aimed at making the patient feel better about themselves by helping them to perform tasks that they had been unable to perform before, and physiotherapy seemed to be developed to help patients restore normal joint and overall movement to help them either do better at activities of daily living, or specifically, return to play for sports competitions.
    The second difference, I believe, is the teaching of manipulation. We learn many treatment modalities – many of which are similar to those that my Physio friends/colleagues learn. However, we learn manipulation techniques all through our five years of training. I’m not sure what my PT and OT colleagues learn, but as we are a primary contact health care profession in Australia, we are required to learn how to recognise many signs and symptoms of organic disease that may masquerade as musculoskeletal conditions (as opposed to busting a subbie to unleash the innate and voila, organic disease is cured…), such as ischaemic heart disease masquerading as neck/shoulder/rib pain, early signs of ALS that may appear to be non-specific cramping/spasm along with fasciculations… it really is an intensive program and most people would be quite surprised.

    2) I actually chose chiropractic because of a personal experience where chiropractic helped me walk when I was severely limited by pain. I saw it as a miracle cure for everything. So, I attended chiropractic training based on an experience that may have not been explained to me properly, and I formed my own belief.

    What I have had since attending is a good grounding in science and critical thinking that has helped to shape my views on chiropractic and medicine. A part of me wishes I had applied for medicine instead of chiropractic, as I may have been able to help my patients even more than I can now. I might practice for 5 years and start paying down my debts first…

  33. sarah007 says:

    Uh Jamm are you seriuos”if in the course of practicing acupuncture a medical problem arose (e.g., a collapsed lung from an acupuncture needle)

    If you are going to crit something at least read up on it!

    Jann again “It raises an interesting question: to what extent can one ignore science in making representations about the mechanism of action and effectiveness of treatments and not be ethically and legally culpable for those representations? ”

    Look at swine flu handled medically it needed legal underwriting so that no one could be sued for the damage for the uneeded treatment. This highlights your concerns totally, lying, fiddling and in denial.

  34. lizditz says:

    #mattyp there I go jumping to conclusions again. I assumed you were American. I know a bit about chiro education here in the States (part of a research project) but don’t know nuttin about Australia. It appears that Australia divides up the manual therapies differently than the US

  35. peicurmudgeon says:

    As far as CAM practitioners such as Homoeopaths or Reflexologists acting within the standards of their profession in treating their patients, one of the biggest issues is that, as stated above there are no real standards. Certainly they can both state that there are no potential side effects to any of their treatments, but what they don’t say is there is no effectiveness either.

    An ethical medical practitioner must talk about both the potential side effects and the probability of successful treatment. That is how patients are able to provide informed consent. In medications, there is the additional step of the involvement of the pharmacist. In Canada, they are required to advise a patient of the potential effects of a new prescription. In most surgeries, there is an initial diagnosis by a Family Physician and and additional assessment by the surgeon, with information passed along at both stages. In CAM, where the treatment is both prescribed and delivered by the same individual, those checks are not in place. In fact this puts most CAM practitioners in an automatic conflict of interest.

    Not only is informed consent missing from CAM, there are no checks in place to verify a diagnosis.

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