The Center for Integrative Medicine at the Cleveland Clinic sells reiki treatments (also here) to patients with cancer, fertility issues, Parkinson’s Disease and digestive problems, as well as other diseases and conditions. The Center’s website ad describes reiki as
a form of hands-on, natural healing that uses universal life force energy . . . [a] vital life force energy that flows through all living things. This gentle energy is limitless in abundance and is believed to be a spiritual form of energy. The Reiki practitioner is the conduit between you and the source of the universal life force energy. . . You may experience the energy as sensations such as heat, tingling, or pulsing where the practitioner places her hands on your body, or you may feel these sensations move through your body to other locations. This is the energy flowing into you.
This “universal life force energy” is described as having certain positive effects on one’s own energy, such as “energetically balancing” one physically, replenishing one’s supply of energy, improving distribution of that energy in the body, and dissolving “energy blockages.” It also increases one’s “vibrational frequencies,” although how these frequencies relate to one’s energy, or to anything else for that matter, is not made clear.
The Center claims that reiki has specific medical benefits. These include:
- Lessening symptoms and side effects of traditional treatments
- Success in all types of physical healing
- Detoxifying the body
- Pain relief
- Stimulating bone and tissue healing after injury or surgery
- Stimulating the body’s immune system
If you are in good health, the Center recommends monthly reiki treatments to “enhance your ability to respond to unhealthy elements in your environment and help you to handle stress.”
For those of you not familiar with the Cleveland Clinic, it is a top ranked (and here) U.S. hospital, although it has experienced some difficulties of late. 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.
The website is HonCode certified.
The Cleveland Clinic is not the only hospital selling reiki to patients. According to a recent 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.
The Cleveland Clinic touts this popularity as a selling point for reiki:
Its popularity has spread all over the world, and is now used in many medical facilities, such as hospitals and hospices.
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.
Homeopathy could serve as a cautionary tale for the hospital industry. Numerous class actions based on fraud, as well as consumer protection laws, have been filed against homeopathic remedy manufacturers in the last several years. (Class actions can aggregate many small claims of financial loss for plaintiffs unlikely to bring individual suits.) To my knowledge, all of these have settled, costing the companies millions of dollars. One manufacturer has decided to opt out of the American and Canadian markets because of liability concerns. Homeopathic products are still very much on the shelves but, then again, homeopathic remedy companies seem fairly shameless. I would think that medical facilities, which trade on their reputations for excellence in patient care, have a lot more to fear from a suit for fraudulent misrepresentation.
I wrote about CAM and fraud a couple of years ago, but it is a subject worth revisiting. As we’ve seen, the mere lack of scientific plausibility, evidence of effectiveness or collateral damage doesn’t appear to penetrate the mindset of those who engage in CAM promotion. Perhaps the unseemly optics of being a defendant in an action for fraud, plus the possible financial impact, could chill the passion for integrating pseudoscience into otherwise respectable medical organizations.
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 receives ongoing treatment at a certain hospital. In our discussion, we’ll assume that the patient has seen the hospital’s website advertisement for reiki and that it contains the same information as the Cleveland Clinic’s ad. The patient has decided to purchase a session 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 in the ad.
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 few 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 replenish the patient’s own energy and/or 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 injury or surgery, an unspecified “success” in physical healing 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.
- Reiki is ineffective, 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 hospitals knowledge of the untrue character of it representations. I know 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 holds 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 don’t think you do, 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 or I (if you are a faithful SBM reader), 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.