To Download "pdf" protection legal instruments.
1. Informed consent instrument.2. Assumption of risks instrument.3. Psychological evaluation document.4. Other legal protection tools.
The first three pdf documents are 200 dollars.With the fourth one, the cost is 300 dollars.CLICK HERE TO PAY.
INTRODUCTION TO THE RATIONALE OF THESE LEGAL INSTRUMENTS
From informed consent to the assumption of risks (liability release) instruments and others legal tools, the physician can benefit from multiple legal protection layers. Specific legal clauses on the physician’s recommendation to see a licensed psychologist and an attorney to the clauses on competency, family discussion and severability can meaningfully disuade a deceased patient's entourage from engaging the physician in a lawsuit, if only because these legal tools can better show that a potential plaintiff's lawsuit is frivolous. And most attorney will not prosecute a case which is frivolous, if only because there are ethics rules against this practice and because a losing plaintiff will have to pay the winning defendant's attorney fees.Thus, understanding and identifying the relevant issues as well as the existing defenses, such as express and implied assumption of risk, will help integrative and holistic physicians to structure their clinical practice so as to provide the best possible care with minimal malpractice exposure.
INFORMED CONSENT
Information about potential integrative or holistic medicine risks, (which includes common and less serious adverse affects as well as less common but grave complications), is essential for physicians and patients to be aware of, these side effects and potential risks need to be adequately explained to the patient if they are material to the patient’s treatment decisions.
Failure to adequately disclose the availability, benefits, side effects and risks of integrative and holistic medicine treatments and procedures can give rise to malpractice claims. Moreover, the ethical rules physicians follow in conventional care can also be applied to treatment with integrative and holistic care. In this perspective, the emphasis should be on clearly expressing the side effects and risks of all relevant procedures, of documenting informed consent adequately, and keeping up-to-date with the emerging evidence and clinical trials on integrative and holistic medicine.
INFORMED CONSENT NEEDS TO BE MEMORIALIZED VIA A LEGAL INSTRUMENT
Informed consent is more than disclosure or briefing, the informed consent requirement is an educated conversation between two persons (the physician and the patient) who are involved in a shared decision-making process regarding the risks and benefits of medical procedures, the scientific validity upon which they are based, possible outcomes and the best results innovative science and medicine can give.For the health practioner's and patient's legal protection, it is best that this conversation be memorialized in a legal document, the precise legal language of which can be of great benefit to all parties.
THE ASSUMPTION OF RISK TOOL: A CRUCIAL LEGAL INSTRUMENT FOR INTEGRATIVE AND HOLISTIC HEALTH PRACTIONERS.
When a chronic diseased patient comes to an integrative or holistic physician, he-she usually has had multiple mainstream treatments, many of which have embedded risks and side effects. In addition, most chronic diseases are difficult disease to cure and much depends on the patient’s lifestyle and will to live. Moreover, most innovative and integrative medicine procedures are not without some risks and side effects, even if much less than mainstream allopathic procedures.
And many innovative procedures lack documented data. There are therefore many circumstances and risks and unknowns and costs that the integrative physician can not control and regarding which he-she must inform. As states the Society of Integrative Oncology’s guideline brochure (page 66):
“Patients should be fully informed of the potential risks/benefits, to have realistic expectations, and to know the financial implications of all treatment modalities. This is especially true for treatments that are deemed safe for which there are not as much data on efficacy.”
An assumption of risk form (also called a liability waiver or release) is appropriate where the above referenced circumstances exist. These forms have been used for many years for a variety of circumstances by many institutions, including in the health field. An assumption of risk form is an important document to reduce risk. It is used as a tool to transfer and reduce risks by discouraging some claims or lawsuits from ever being filed. An assumption of risk form is actually a kind of contract. In effect, the contract provides:
" The integrative physician will accept a person as a patient and do his best to treat patient if patient waives some or all of his-her possible claims for damages in the event that he-she is injured."
Like all contracts, the assumption of risk one can be the subject of judicial interpretation. There are a variety of court cases dealing with whether the language of a particular waiver document actually releases of claims by the potential plaintiff. Absent any public policy to the contrary, most States allow parties to agree in advance that one party shall not be liable to the other for risks and injury caused.
SPECIFIC RISKS NEED TO BE SPELLED OUT
The problems inherent in the interpretation of assumption of risk forms can be overcome by having the forms written, to the extent possible, in clear legal language that spells out the specific risks present in the activity. These assumption of risks forms have proven that they are a valuable tool in defending against the rising tide of frivolous lawsuits. In addition, with the rising costs of insurance premiums, the need for such forms is further justified.
A CASE STUDY ILLUSTRATION
Among other cases, hereinafter an illustration on how an assumption of risk form can be helpful. In Schneider v. Revici, the patient sought integrative oncology treatment for breast cancer. She signed a detailed consent form releasing Dr. Revici from liability. Following the treatment, the tumor spread. The jury found Dr. Revici liable for malpractice but halved the award, finding the patient fifty percent comparatively negligent.
In this framework, the U.S. Court of Appeals for the Second Circuit, reversing, held that the trial judge should have instructed the jury that express assumption of risk was a complete defense to malpractice. In this regard, the Court ruled that patients can expressly "assume the risk of medical malpractice" thereby absolving the doctor of further responsibility for the outcome. Moreover, the Court argued:
"We see no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment," the Appeals Court wrote. "While a patient should be encouraged to exercise care for his own safety, we believe that an informed decision to avoid surgery and conventional chemotherapy is within the patient’s right to determine what shall be done with his own body.' "
EXPRESSED ASSUMPTION OF RISK VERSUS IMPLIED ASSUMPTION OF RISK
In this case, the court distinguished express assumption of risk (in which the patient agrees in advance that the physician need not use reasonable care for the patient's benefit) from implied assumption of risk (which is founded on the patient's reasonable, voluntary, and intelligent consent to the risk of harm from the physician's conduct).
In many jurisdictions, express assumption of risk completely exonerates the physician. In this New York case, it:
"dissolve[s] the physician's duty to treat a patient according to medical community standards;" Whereas implied assumption of risk triggers comparative negligence, in which the physician's liability is reduced to the extent of the patient's responsibility or fault. A number of jurisdictions follow this distinction, with minor variations.
THE LIMITS OF AN IMPLIED ASSUMPTION OF RISK DEFENSE
However, as the Schneider and Charell case indicates, in an implied assumption of risk defense, the physician facing comparative negligence can incur substantial monetary liability even if the jury finds that the patient bears significant responsibility for the harm. This is why it is best to help educate the patient so as to ensure implied assumption of risk AND request from him-her to sign an express assumption of risk document, which quasi completes the protection process. The doctrine of assumption of risk, therefore, serves physicians best when the patient's assumption of risks relating to the choice of a non conventional treatment, selected and administered with due care, is deemed express. In jurisdictions authorizing such a defense, (and most do), and holding it a complete bar to a medical malpractice claim, physicians will benefit from a prior clear, written agreement documenting the patient's consent to (and express assumption of) all risks relating to the selection and execution, of complementary and alternative and integrative or holistic treatments.
CONCLUSION
In conclusion, of the dozen or so of liability sources a holistic health physician faces, the assumption of risk document can help with the medmal claim based on the delay of medically necessary effective conventional treatment, vicarious liability, adverse herb-drug or conventional-integrative medicine interaction etc. while the informed consent tool protects from the common “inadequate informed consent” claim.
However, for this last tool to be effective, the doctor must not neglect to warn the patient of all potential risk, both known and unknown (i.e., the possibility that harm might occur even if not yet documented in the medical literature) for this instrument to be effective. Hence, holistic physicians who are practicing a relatively new and innovative procedures need to have specific legal clauses that will protect the physician even from the "unknowns" of innovative and holistic medicine.There are of course limits to the doctrine of assumption of risks, different interpretations depending on each State etc. However nothing replaces reasonable care, this is still the best defense, though one must be prudent via the use of the assumption of risk and informed consent instruments, given that too often the family and-or beneficiaries (estate) of the decedent (deceased) may not understand integrative and holistic practicioner's approach, as did the patient, because of which they tend to argue the "loss of chance" theory and blame the wrongful death on the physician, he-she (the potential defendant-doctor) may be liable to for not having practiced the mainstream standard of care. And there is also the frivolous aspect, where family members sue out of anger and grief. And sometimes greed. An express waiver can thus be efficient as a dissuasive tool to these potential plaintiffs.
In this packet, we discuss other protection options, the existing US case law and several hypothetical scenarios.
For a few pieces of case law on informed consent, please click here
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