Your Right to Know

East Meets West

By Michael A. Taromina, Esq.

One traces back several hundred years, the other several thousand. They were founded upon different theories, codified in this country by a separate set of statutes during completely different eras. They remain governed by different regulations. Today, practitioners of Eastern and Western medical systems are independently managing their unique risks while struggling to advance the impact, influence, and profit of their respective disciplines. Some of them, however, are choosing a different route of advancement uniting all of their differences under a public banner of medical integration.

Is Eastern and Western medical integration a wise decision on the soil of modern America . . . the most litigious society ever known?

Before we answer, let's briefly examine the liability implications of a few integration scenarios:

1. Dual Licensee (a licensed physician and traditional Chinese medicine (TCM) provider). This integration scenario involves one practitioner who treats the same patient using two different forms of medicine. So long as the practitioner is licensed (or certified) and competent in both fields, there are no added liability issues to the dual practice. I have seen occasional legal entanglements emerge in this setting when dual practitioners (or their office staff) submit, intentionally or unintentionally, wrong corresponding insurance codes for specific treatments. Dual license "confusion" is, of course, no defense for failure to maintain proper medical, billing, and coding records.

2. Joint Treatment. This increasingly common scenario occurs when a physician and a TCM practitioner treat the same patient within the same medical setting (in some cases for the same condition). Here we have one patient, one setting (clinic or private office), two practitioners (who may or may not have a financial relationship), and two forms of medicine being administered. Each provider is 100 percent responsible for their individual services and can—in varying percentages—be held responsible for the other provider's malpractice. It is possible for both practices to operate independently in terms of risk. Legal responsibility to a patient, however, is not measured by the language in agreements between practitioners. In fact, a financial agreement or payment, if any, between practitioners is irrelevant to assessing malpractice liability. Therefore, it is extremely important for professionals in joint treatment settings to make sure their fellow practitioners are duly qualified, licensed, and competent in their respective fields.

3. Referrals. This scenario occurs when a provider refers a patient to another specific provider who practices in a different, unrelated medical setting. Here we have one patient, two practitioners, two medicines, and two separate settings. The risk associated with this scenario is not unlike a Western doctor referring out to a specific specialist in Western medicine. Potential ongoing liability may be avoided by discontinuing treatments prior to specific referrals. However, ongoing patient care, even if interrupted, creates ongoing liability. Because a referring provider may be liable for the malpractice of the referred-to provider, it is, once again, critical to investigate a provider's qualifications and competency before referring to or associating with them.

Driven by patient demands, medical integration has become a pillar of health care in this country. For decades now, different modalities or specializations of Western medicine have "integrated" together to better serve (and profit from) patients. Today, traditional Chinese Medicine (TCM), as an increasingly accepted form of overall health care, is simply joining the long-standing equation of risk in an integrative medical setting, it is not transforming it.

So for the careful, qualified, and competent TCM practitioners who are considering integrating with careful, qualified, and competent physicians my advice is this: Go West young practitioners and do not worry . . . any more than you should worry alone in the East. God bless America.

Michael A. Taromina, Esq., has represented practitioners, institutions, organizations, and students in the TCM field. He serves as a member of the NCCAOM Ethics and Disciplinary Committee and has designed and taught programs in health law, ethics, professional liability and practice management.

Do you have a question, comment or issue you'd like Michael Taromina to address in an upcoming column? Email Harmony at newsletter@tcmworld.org.

Michael Taromina, Esq., will conduct a preconference workshop on risk management, liability, and ethics that satisfies NCCAOM CEU requirements at the 2006 Building Bridges conference in October. He will also present a Sunday intensive on strategies for practitioner protection. Visit www.tcmconference.org or call 1.888.TCM.6909 for more information or to register.