I’m on vacation, so I’ve updated a post from several years ago.
Six years ago, I confessed in one of my early SBM posts that, during my continuing education about so-called “complementary and alternative” medicine [I’d add “integrative medicine” now], one question presented itself in my mind over and over: Isn’t that fraud? In that post I concluded:
As criticism of CAM for scientific implausibility grows and study after study fails to support claims of effectiveness, we may reach a point where it becomes impossible for the CAM practitioner to avoid knowing that CAM is based on misrepresentations, making it much harder to defeat claims of fraudulent misrepresentation.
Wrong! At least in part. There’s no doubt the putative evidence base for CAM products and practices has shriveled in the past six years as we’ve chronicled in many SBM posts on subjects like acupuncture, homeopathy, chiropractic, and supplements. But those who promote CAM, now rebranded as “integrative medicine,” appear to be totally unfazed by the prospect that they are fudging on the facts and possibly subjecting themselves to liability.
A few years later, I pointed out how claims made by the venerable Cleveland Clinic for reiki might well constitute the tort of fraudulent misrepresentation. Unfortunately, no one seems to have listened. While some of the Cleveland Clinic’s material on reiki appears to have been rewritten since that post, demonstrable misrepresentations remain. They’ve even added a new form of “energy medicine” (the category of woo under which reiki is catalogued) called “Eden Energy Medicine.” (If you’d like to read a big load of woo-speak “explaining” Eden Energy Medicine, you can do so here, complete with a discussion of “energy points” and, as you’d expect , “quantum compatibility.”)
In fact, the Cleveland Clinic publicly reaffirmed its commitment to quackademic medicine just this year. After public outcry over an anti-vaccination screed written by the director of the Cleveland Clinic Wellness Institute forced the Clinic’s CEO to issue a strongly-worded statement supporting vaccination science, some wondered if this might signal a repudiation of pseudoscience.
Sadly, no. A full-throated defense of selling services with no plausibility and/or insufficient evidence of effectiveness followed quickly on the heels of the Cleveland Clinic’s mea culpa. The Cleveland Clinic’s Wellness Institute still offers acupuncture, acupressure, laser acupuncture, craniosacral therapy, therapeutic touch, functional medicine, chiropractic, and herbs (also here) as well as “energy medicine,” in addition to the aforementioned reiki and Eden Energy Medicine. It proffers wholly credulous descriptions of “integrative” treatments on its website.
The Wellness Institute describes reiki as:
hands-on, natural healing that uses the universal life force energy . . . [a] vital life force energy that flows through all living things . . . The Reiki practitioner is the conduit between the patient and the source of the universal life force energy; the energy flows through the practitioner’s energy field and through her hands to the patient. . . . [She] places her hands in specific energy locations . . . [t]he length of time determined by the flow of energy through her hands. . . . The patient experiences the energy as sensations such as heat, tingling, or pulsing where the practitioner has placed her hands. Sometimes, the sensations are felt moving through the body.
This “universal life force energy” has, according to the Institute, certain positive effects, such as dissolving “energy blockages” and “supply[ing] universal life force energy to the body.” It also increases one’s “vibrational frequency on physical, mental emotional and spiritual levels,” although how these frequencies relate to one’s energy, or to anything else for that matter, is not made clear.
In its explanation of energy medicine, under the heading “What We Treat” (note the use of the word “treat”), the Institute claims that various “energy techniques,” such as the practitioner moving her hands over the body, creates “new energy patterns” which “improve health.” The Institute asserts that energy medicine in general, including reiki, benefits certain medical conditions, including:
- Digestive issues
- Autoimmune conditions
- Cancer treatment recovery
- Hormone imbalance
As for reiki in particular, the Institute says it will “improve overall health” and “may do the following:”
- Detoxifying the body
- Help to relieve pain
- Stimulate bone and tissue healing after injury or surgery
- Stimulate the body’s immune system
If you are in good health, the Institute recommends monthly reiki treatments to:
enhance your ability to respond to unhealthy elements in your environment and help you to handle stress. By promoting the harmonious distribution of energy, Reiki is an excellent form of preventive medicine.
According to its website:
All health information posted on the site is based on the latest research and national treatment standards, and have been written or reviewed and approved by Cleveland Clinic physicians or health professionals unless otherwise specified.
Of course, the Cleveland Clinic is not the only hospital selling reiki to patients. According to an article in the Washington Post:
More than 60 U.S. hospitals have adopted Reiki as part of patient services, according to a UCLA study, and Reiki education is offered at 800 hospitals.
Which brings up an interesting question: Could a medical facility’s selling reiki to the public give rise to an individual or class action lawsuit for fraud? If so, then hospitals and other health care facilities are needlessly subjecting themselves to liability, something they generally go to great strides to avoid.
The law of fraudulent misrepresentation
What is fraud? It can take a number of forms: tort, contract, criminal. The concept has been incorporated into several specialized state and federal laws, such as deceptive trade practices, consumer protection and securities laws. Here, we are discussing what is known as the tort of fraudulent misrepresentation, also called deceit. Fraud is a very old concept adopted in America from the English legal system when it became an independent country with its own system of laws. While the law of fraudulent misrepresentation varies in some respects from jurisdiction to jurisdiction, here we’ll use a general statement of its elements from the Restatement 2d of Torts. (The Restatement is sort of “best practices” guide to certain areas of the law composed by experts in the field.)
If you want to successfully sue someone for fraudulent misrepresentation, you have to prove certain defined elements of that tort. Let’s imagine a hypothetical case in which the plaintiff is a cancer patient who has had surgery to resect a tumor and receives ongoing treatment at a hospital. In our discussion, we’ll assume that the patient has seen his hospital’s website advertisement for energy medicine, specifically reiki, and that it contains the same information as the Cleveland Clinic’s. The patient has decided to purchase several sessions with one of the hospital’s integrative medicine center’s practitioners. We’ll also assume that the information given to our cancer patient in person is the same as, or at least not inconsistent with, the information on the Cleveland Clinic’s website.
Here’s what the patient will have to prove to win his case against the hospital:
- The hospital fraudulently made a misrepresentation of fact or opinion.
- The hospital intended to induce the patient to purchase a reiki session.
- The patient acted in justifiable reliance on the misrepresentation.
- Pecuniary damage to the patient resulting from his reliance.
Let’s get a couple of these out of the way right off the bat. The hospital obviously intends that the patient rely on its advertisement for reiki in purchasing its services, that is, it “intends to induce plaintiff to act.” And, to the extent the patient paid for those services, the patient has suffered damages, even though the amount may be small. The hospital would also be liable for any physical harm caused by reiki. As reiki has no known ill effects, a fact that undercuts its very credibility as a treatment, we can safely assume physical harm won’t be an issue.
(Although it would certainly make for an amusing case if the patient claimed that reiki actually messed up his “energy distribution,” thereby making him even more ill. How would the hospital defend against that? Would it put on evidence that this energy doesn’t exist and can’t cause any harm, thus proving the patient’s case for misrepresentation?)
Misrepresentation of facts
To recap, here’s what the patient is told: During reiki, a practitioner receives energy from a source, then proceeds to manipulate the patient’s energy by causing it to move through the body. The practitioner can also unblock energy to facilitate its proper flow. Objective evidence that energy is flowing may be felt by the patient in the form of heat, tingling or pulsing. Treatment effects are both a positive effect on the body’s energy itself and specific improvements in the patient’s medical condition, such as stimulation of bone and tissue healing after surgery, pain relief, stimulation of the immune system, and “detoxifying” the body.
Here is what we actually know about reiki:
- There is no evidence that this “energy” exists or that it’s putative deficit or suboptimal movement is detrimental to health.
- Physical effects such as tingling must be attributed to some other phenomena.
- There is no credible evidence that reiki is effective for any medical condition, although it may evoke some sort of placebo response.
- “Detoxification” and “boosting the immune system,” are bogus.
So, yes, there are misrepresentations in the ad.
Even if the hospital were to argue that the statements are in fact true and that there was some evidence (no matter how poor) in support of the ad’s claims, we can still characterize the ad as misleading.
A statement containing a half-truth may be as misleading as a statement wholly false. Thus, a statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false represention as if all the facts stated were untrue.
Restatement 2d of Torts, Sec. 529, comment a.
To avoid characterization as misleading, the ad should, at the very least, inform the patient of reiki’s lack of plausibility and the extremely poor quality of the evidence supporting its use. Even at that, it might not pass muster.
Are these misrepresentations fraudulent?
Whether a misrepresentation is fraudulent refers solely to the hospital’s knowledge of the untrue character of it representations. Of course, hospitals are business entities, such as corporations, and they can’t “know” anything except through their employees and other agents who act for them. But to keep it simple, we’ll just refer to the hospital itself instead of having to say “the hospital’s employee” or “the hospital’s agent.” And we won’t worry about whether the reiki practitioner was totally clueless and really believed what the ad said. Hopefully, she doesn’t hold such a position of authority that there is no medical doctor somewhere up the supervisory line who has the responsibility of knowing what she is up to. Why? Because no medical doctor could credibly testify he did not know, or did not strongly suspect, that the ad wasn’t telling the full story. Or, at the least, he knew there must be some disconfirming evidence to contradict the ad’s claims. His knowledge is the hospital’s knowledge from a legal standpoint.
The law of fraudulent misrepresentation does not get into issues of whether the hospital’s intent was pure or whether it was “trying to help.” “Intent” refers to the intent to withhold information, or to give false information, not intent in some evil sense. What the law requires, if you are selling a product or service to a consumer, is that you tell the consumer what you know about the product or service and you don’t leave out information that a person purchasing your product would want to know. (I think we can safely assume that a patient would want to know that a treatment is worthless.)
If you don’t have the complete story, but you operate with a reckless indifference to what the complete story is, you can also be held liable. Or if you represent something as fact when you actually know you don’t have all the facts, or think you might not have all the facts, you can be held liable as well. In short, you can’t represent something as a fact unless you indeed know it is a fact, or at least honestly think you know it as a fact, without doubts or a disregard for the facts. A hospital that presents itself as offering the best care, yet fails to determine the full extent of the evidence for (or against) that care, or knows there is other evidence out there that may contradict what it is telling patients, is potentially liable for fraudulent misrepresentation whether the treatment is chemotherapy or reiki. It makes no difference as far as liability is concerned.
Was our patient’s reliance on the hospital’s claims justifiable?
So far, we’ve looked at the hospital’s conduct and found that, based on the facts we’ve used in our hypothetical, the hospital has both misrepresented the facts and has done so intentionally. Let’s turn to our cancer patient, because to successfully make out a case for fraudulent misrepresentation, we have to show that the patient (a) relied on the misrepresentation in deciding to purchase a reiki treatment and that (b) the reliance was justified.
We’ve already determined that the patient relied on the hospital’s information – otherwise, why would he buy the treatment? But was his reliable justifiable?
If the patient were you (if you are a faithful SBM reader) or I, we would know that the hospital’s claims are false, and we wouldn’t win. Actual knowledge of falsity bars recovery. But what about other patients, who don’t know anything about reiki? Are they required to do their own research? No, not in an action for fraudulent misrepresentation, even where the falsity of the information about reiki could have been ascertained without much trouble or expense. (Say, by reading Science-Based Medicine, or Wikipedia, or Respectful Insolence.) If a patient is highly suspicious, there might be a question of whether he relied on the misrepresentations or whether his reliance was justifiable, and some jurisdictions do impose a duty to investigate where there is reason to suspect a statement is false.
But the standard is not whether a reasonable person would investigate these claims. That is the standard for contributory negligence – what a reasonable person would do – and contributory negligence is not applicable in fraudulent misrepresentation lawsuits, because it is an intentional tort. The only question would be is whether the patient himself was suspicious of falsity. (And that would be a dicey question for the defendant’s attorney to ask the plaintiff: “Didn’t you even suspect my client’s statements were false?”) He is not required to investigate. This is especially true where, as here, the plaintiff may particularly vulnerable due to his illness and the defendant knows of that vulnerability. (Of course, the hospital could not be heard to argue that it didn’t know its cancer patients are vulnerable due to their illness.) It is also especially true where there is a relationship of trust and confidence between the plaintiff and defendant, a situation that most certainly describes that between a patient and hospital, especially where the hospital advertises itself as providing top notch care.
To sum up the case for our cancer patient: The hospital advertised a treatment, reiki, claiming it provides specific health benefits by adding to, moving and/or unblocking the patient’s “energy.” The hospital knew these claims are false, or it disregarded the facts, yet intended that our patient rely on these false claims in order to induce him to purchase one or more reiki sessions. The plaintiff did, in fact, rely on the hospital’s statements of health benefits and was justified in believing reiki could actually produce these benefits, a reliance grounded, in part, because he believed that his hospital would provide accurate health information. Our patient has proved all the elements of fraudulent misrepresentation and should win his case.