The Institute’s Holistic Oncology Legal Workshop

Introduction on the Fundamental Rights of Patients and the Basic Duties of Physicians with regard to benefiting from from Holistic Oncology

 

Any Court of law’s Judge or physician, or panel of hospital-based physicians, claiming that Holistic Oncology is experimental, unapproved, and/or posing unwarranted risks to the health of the patient is simply confirming a total ignorance and-or denial of the scientific literature.

A serious question as to what the real motivations might be in the withholding of such a therapy then arises.

While a medical doctor has the right to refuse to treat a patient, he or she does not have the right to refuse scientifically supported holistic cancer techniques when he or she accepts to be your doctor.

To deny the patient any therapy that is inexpensive and known to be effective and nontoxic is malpractice and we will teach you how to argue this in a court-room and show you the case law.

And when there is some side effects with a holistic technique, the patient can easily sign an assumption of risk document, in association with an informed consent piece.

Furthermore, a doctor does not have the right to deny you consultation with another doctor that may have conflicting medical points of view.

Just as ignorance of the law is no sound defense to legal charges brought against you, ignorance of medical fact is ultimately no sound defense for a doctor withholding valid treatment.

While a hospital may or may not have a legal right to dictate to its physicians what they may or may not do, the patient and the family of the patient have the legal right to sue that hospital for any negative outcome that is perceived to directly result from such interference in patient care.

The patient and the family of the patient also have the right to sue any physician that refuses to administer an inexpensive, nontoxic therapy that is established to be of use in the medical literature.

And this is all the more true when no other options other than permitting the patient to die from a “terminal” diagnosis are offered.

Doctors have a very strong herd mentality, and they do not thrive well when forced to deal with a lawsuit alone, and possibly not even with the support of their malpractice insurance company.

The prevailing legal Standard: the majority of the medical community can exclude all minor medical opinions.

According to Frye, in a court of law, legal decisions regarding medical issues are usually decided by comparing a doctor’s actions (or inactions) to the accepted standards of medical practice in the community in question.

The legal sticking points relate to how different that community might be from others, and whether the accepted standard of practice is too far deviated from overall mainstream medicine norms.

The legal system struggles with reconciling something well-established in the medical literature, but not reflected in the standard medical textbooks. A case involving withholding vitamin C, cannabis oil or hyperthermia to a cancer patient would not currently have any direct legal precedent of which I am aware, but there are multiple reasons to believe that the time is ripe for the law to rule for the patient’s right to receive most of Holistic Oncology’s techniques, in particular in the hospital over the doctor’s “right” to withhold it.

Threshold

The more patient want Holistic Oncology and the more doctors offer it, including integrative and functional oncology, the more the court of public opinion will reach mis-educated judges in this realm. Trial judges are gatekeepers, they decide what experts is qualified, and hence, they can break or make your case in the courtroom.

Over the past 20 years, many more doctors have begun to use some form of alternative oncology, whether it’s mistletoe, enzyme therapy, or vitamin C intravenously .

 These doctors have come from the same medical schools and postgraduate training programs as their unlike-minded mainstream counterparts, meaning they have the same traditional credentials and warrant equal consideration.

The law does recognizes that there is no one perfect medical approach to a patient.

Having an increasingly large body of doctors who recognize the importance of integrative and holistic oncology will allow the courts to permit an additional “school of thought” as long as enough traditionally-trained doctors think that way. The question yet to be legally determined is, How many such doctors is “enough?”

Frye Precedent

Under United States law, the long-standing Frye standard (1923) held that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. This standard made it almost impossible for any technique embraced by a minority, however competent or appropriately trained, to ever coexist with, much less supersede, a technique embraced by the larger scientific community. Basically, majority always wins, and minority always loses. Still to this day, notably in State courts, the Frye precedent still prevails.

In 1993, in the federal realm, the Daubert standard (1993)  replaced the Frye standard.  Daubert held that the court should:Evaluate whether the science can be or has been tested Determine whether the science has been published or peer-reviewed Consider the likelihood of error (quality and quantity of the data) Evaluate the general acceptance of the theory in the scientific community

If the court is so inclined, the evaluation of general acceptance in the scientific (medical) community does not have to invoke the “majority rules” nature of the earlier Frye standard. Rather, it can allow the consideration that enough scientific studies embraced by enough qualified doctors could prevail legally. However, any final ruling would be heavily dependent on the particular facts of the case and the precise intervention requested of the court.

The principles of Daubert do not assure a victory for  integrative oncology, let alone for holistic oncology. Especially in State jurisdictions.  But in Federal jurisdictions,  they do allow an objective judge to see that the body of evidence supporting holistic oncology is clearly established in the mainstream medical literature, warranting a thorough legal evaluation as to why it is not yet a permissible therapy. These principles allow for much more flexibility than the earlier Frye “majority rules” standard.

Burden of Proof

Also, with any individual case in which a doctor refuses to administer Holistic Oncology techniques,  and serious damage (including death) occurs, (as often it does with conventional oncology’s chemo and radiation therapy),  a strong legal case can  be made that the burden of proof falls with the doctor to show: That the therapy was exceptionally expensive, toxic, and/or unproven. And that the patient’s best interests were somehow best served by withholding Holistic Oncology.

Discussion

It always best to establish a good professional relationship between the treating doctor and the patient, avoiding adversarial relationship which can be draining, especially for the cancer patient. The patient always has the right to “fire” his or her doctor, but if the patient is under a strict insurance plan, his or her following doctor may be just as conflicting.

However, do not hesitate to let your doctor know directly that you will avail yourself of all your rights and your family member’s rights as a patient to optimal health care if so forced.

A very common “out” in all of these scenarios is to suggest that “further studies” should be done. More information is always useful, and in this realm, the ACR Institute may be able to help you.

Stand up for your rights today. The way medicine is practiced will never change until the public demands it and the law legitimizes it. Remember, it’s your body and your health. Doctors are answerable to you, not you to them.

Conclusion

Majority squash minority, yet…always minority innovation…dilemman pro active

TEXT pending

References:

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

 

 

 

Legal Considerations

The New Zealand Medical Council’s “Good Medical Practice” guide for doctors asserts that doctorshave a duty to actively research available information on non-mainstream(“complementary and alternative”) treatments.

As well, the guide indicates that the doctor must make a referral to another doctor when the patient or the legal representative of the patient so requests.

Legal Considerations

When the doctor refuses to be open to education and/or consultation, the patient has the right to:

1. Information about the doctor’s preferred treatment, in writing.

2. Information as to why the doctor refuses to administer the desired treatment, in writing.

3. Be treated by a doctor familiar and supportive of that treatment.

4. The written documents generated can be used for legal purposes, and/or for supporting a complaint to the Health and Disability Commissioner

 

Leave a Reply

Translate »
error: Content is protected !!