THE STANDARD OF
CARE IN TRADITIONAL MEDICINE AND MODERN MEDICINE
Halima Boukerroucha,1 Asmaa Ibrahim Atiyah*2
1 Assistant Professor, Ahmad Ibrahim Kulliyya of Laws,
IIUM Gombak Campus, PhD in Usul Al Fiqh - Doctor of Philosophy, Algier
University Email: bhalima@iium.edu.my.
2 Doctoral Candidate, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University
Malaysia, Jalan Gombak, 53100 Kuala Lumpure, Malaysia. Education: Degree and
Master in Law 2000, Iraq. Email: asmaalaw2012@gmail.com
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ABSTRACT |
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Keywords: Traditional Medicine; Modern
Medicine; Standard of Care; Standard of Practice; Duty of Care; |
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This study aims to present
the standard of care used in both traditional and modern medicine with
attempts to compare and contrast between each of them. The issue of concern
is whether practitioners in both medicine are required to adhere and follow
the same standard of care or each one has its own standard differ from other.
This should follow by necessity to define these standard in either field to
the general public, patients, and practitioners in order to protect them.
Such standard is considered as the cornerstone in the field of medicine; its
practitioner is, thus, required to be committed in acting in accordance to
the given standard and failure to do so could result to certain legal
implications and actions. Therefore, practitioners in the field of medicine
are held liable if found to be negligent in any of the given standard of
care. So, to examine this issue, this
study explains the definition of the standards of care in traditional and
modern medicine firstly. Following by stating the limitations of the given
standards of care in each field of medicine secondly. At the latest, it will
mention the critical view of standard of care in both medicine. Overall, the
main outcome of this study is that the given standard of care whether in the
field of traditional or modern medicine is different in either field. This
professional differences lead absolutely to vary their legal principles and
rules in malpractice cases. Because of a very unique philosophy, set of
principles, definitions, and standard for traditional medicine in contrast to
modern medicine. Publisher All rights reserved. |
INTRODUCTION
The importance of practice is emphasized as a general rule in medicine on
the extent of the commitment of the practitioner to the given standard of care
in the field of medicine. This
commitment begins at the diagnosis stage of a patient and ends at the treatment
stage. The nature of the disease, type
of remedy, and practice determines the standard of care. Traditional medicine
has been present since the existence of man on earth, but medicine itself
evolved and progress due to time which is what is now called as modern
medicine.
As stated by WHO Traditional Medicine Strategy: 2014-2023, traditional
medicine is “the sum total of the knowledge, skills, and practices based on the
theories, beliefs, and experiences indigenous to different cultures.” Further explained, traditional medicine is
based on the tradition of a group of people and not on any scientific evidence
that can prove its success, effectiveness, and assurance of safety of
treatment. Its treatment rests solely on
human capacity and natural materials devoid of chemical compounds. It holistic approach aims to treat not only
the symptoms of a given malady but also the psychological and physical aspects
of a patient. Moreover, it considers
also the personality and the circumstantial background of a patient upon
diagnosis and treatment.
In contrast to traditional medicine, modern medicine as defined by Segen's
Medical Dictionary, is “a general term for conventional health care based on
the ‘western model’ of evidence-based practice for diagnosing and treating
disease.” It stems from and is dependent
on clinical research, on the safety and effectiveness of certain medicines, and
testing of new treatments and models to given diseases. The primary focus of modern medicine is the
injured part of a patient following its treatment through chemical medicines
and surgery without considering the other parts that are not indisposed. This kind of approach does not give personal
attention to the individual, psychological, and biological condition of a
patient.
According to these definitions, traditional medicine has existed long
before modern medicine was established.
For this, they differ a lot from each other in terms of its historical
background, ideas of its forefathers and founders, medical beliefs, methods,
and means of diagnosis and treatment of diseases.
OBJECTIVES OF THE STUDY
The importance to show that Standards of care
whether in the field of traditional or modern medicine is different. The core
of standard of care is to provide protection to the public, to a patient
specifically, so that the medical practitioner is restricted to the scope of
medicine being practiced and face legal liability in case of violation. Patients are protected by means of the
standard of care that prevents and reduces the chances of exposure to
malpractice of legal and/or unqualified medical practitioners. Likewise, the medical practitioner is
protected by the standard of care that the practitioner is required to adhere
to while practicing a therapeutic model, which in turn, ensures the
availability level of skill and professionalism. This also raises the level of performance and
skill of a practitioner. In addition,
the more knowledge a practitioner gathers within the given standard of care, the
higher level of care may be given to patients and vice-versa.
METHODOLOGY OF THE STUDY
The methodology of
this study is primarily dependent on the theoretical approach that is based on
the collected medical and legal references which established the standard of
care in both traditional and modern medicine.
The methodology employed in this study is gathering of relevant data
from specific documents so as to analyze given materials in order to come up
with a more comprehensive understanding of the concepts of standard of care in
both traditional and modern medicine.
The related literature used in this study is based on textual analysis
of related materials taken from books, articles, journals, and online literature.
ORGANIZATION OF THE STUDY
This study is
divided into three sections as follows:
Definition of the
Standard of Care in Traditional and Modern Medicine
Standard of care,
broadly defined by R.B. Vukmir, is “a duty to use the degree of care and skill,
which is expected of a reasonably competent practitioner in the same class to
which he belongs acting in the same or similar circumstance.” Specifically, it
is a given set of accepted medical basics and principles among medical practitioners
in given circumstances. The main
objective is to meet minimal health requirements. Standards not only assure the kind of quality
care that should be given in medical practice, but it also determines the
measure of the liability and non-liability of a practitioner in the given field
of medicine.
Noticeably, there
are some significant points related to the definition of standard of care
professionally and legally that should explain separately as follows:
(a) Standard of care is considered as a legal terminology
and not a medical one. Standard of care
is used only in a court of law where there is a case of malpractice in the
field of medicine. However, in the
medical field, the standard of practice is considered as a rolling term in
health legislation, unions, and professional organizations. Both terminologies serve as guiding
principles to all medical practitioners. The standards determine what a medical
practitioner should and should not do.
The former serves as the legal indicator of what kind of care should be
given while the latter one is the professional indicator of the required style
of care.
(b) The standard of care in medical terms is “a diagnostic
and treatment process that a clinician should follow for a certain type of
patient, illness, or clinical circumstance.”
In contrast, its legal definition states it as “the level at which the
average, prudent provider in a given community would practice”. Putting the two given definitions together,
standard of care is the scope of the duty of a medical practitioner to exercise
care and skills expected from any practitioner who specializes in a similar
profession under the same circumstances and conditions. The duty of giving care is the epitome and
the basis of standard of care; without which, it is impossible to set the
standard of care.
(c) The standard of care functions as measurement of the
degree of excellence and efficiency exercised by a medical practitioner in
delivering health care to patients. The
level of performance of each medical practitioner is assessed and measured by
the level or degree of the care and skill that is delivered by the same medical
practitioner in the same profession and circumstance. A practitioner is a person who has a relevant
average intelligence, expertise, and experience vis-à-vis other
practitioners. In the medical field, the
standard of care refers to the degree of care given by a medical practitioner
in both phases of diagnosis and treatment.
This also includes the errors made in diagnosis of the condition of a
patient and pharmacological doses.
(d) The standard of care in the field of modern medicine
is the expected practice that each doctor should follow and do in given
circumstances. These standards are
considered as unified, stable, and consistent because they are based in
scientific evidence and objective definition on how to treat and handle
patients rather than on the personality of the user. Any medical practitioner is expected to
adhere to and comply with the standards of care in his/her chosen field of
specialization. This is a legal obligation
imposed by the law. Furthermore, any
violation against the given standard of care that leads to injury on a patient
could be grounds for breaching of duty and subject to medical malpractice case. A medical practitioner cannot be held liable
for malpractice unless a violation from the given standard of care is
proven.
Whereas the definition of standards of care within traditional medicine is
different not just among their practices, but also among countries, states.
Because sometimes it depends on the kind of cultural system and legacies that
were acquired in practice of treatments. Traditional practitioners, in general,
define standard of care as “conform to [their] education, training, and peer
expectations”. While the definition of
standard of care for each traditional particular practice like that of a
chiropractor, for example, is “that degree of care, diligence, judgment, and
skill which is exercised by a reasonable chiropractor under like or similar
circumstances.”
Other laws recognize the standard of care as a description of malpractice
that requires disciplinary sanctions.
The other laws are focused on the definition of standards of practice
for traditional treatment rather than the former. Traditional medicine laws determine the scope,
standards, and guidelines for practice, training, and qualification standards
that must be met by a traditional practitioner of medicine.
(e) The standard of care in traditional medicine is not
about the usual practice that is present in modern medicine. It is connected to the practices that are
consistent with the style of education and training of its practitioners.
Traditional medicine though fixed on therapeutic rules; its standards of
practice within a single model vary among schools and medical doctrines that
developed the education, training curriculum, and scope of practice. Each school or doctrine of a particular
traditional model creates its own standards for practitioners so as to assess
the quality of care provided by them to its practitioners. The difficulty lies on the identification and
regulation of all those traditional doctrines by a legislator.
Limitations of the
Standard of Care in Traditional and Modern Medicine
Standard of care
is established by duty of care and based on level of care that is required from
a medical practitioner to perform. A practitioner must possess a certain level
of skill and professional competence that meet the level of care expected in
performance of tasks. The practitioner
is then evaluated based on the aforementioned criteria including medical
knowledge. This degree of knowledge and
skill is what is known as the standard of care, which medical practitioners are
required to adhere to.
Thus, the term
standard of care is connected with the terms of duty of care and level of care.
So, it should determine how their relationship is happen and its scope by give
a brief definition for each one.
(a) Duty of care is "the legal obligation to provide
reasonable care while performing any acts or making any omissions that could
foreseeable harm others.” This duty
serves as the preliminary requirement for any medical practitioner to
have. In medical practices, this duty of
care refers to the obligation to exercise care but not necessarily arrive at a
result after having followed the standard of care. In modern medicine, the duty of care refers
to an agreed contract of either parties, or a mandatory obligation on the side
of the medical practitioner alone as in emergency cases. However, in traditional medicine, the
therapeutic relationship is an agreement between the traditional practice of
the practitioner and the patient, and this serves as a special treatment. This contract establishes the duty of care
which provides the standards and obligations that should be implemented on both
sides of the relationship.
(b) Level of care that is expected from a professional
practicing modern medicine is the degree of skill and competence that a
professional in the same field and situation possess. This “usual person” is very ideal in nature,
so the courts of law depend on an objective criteria that determines how an
ordinary person with ordinary care would act in given circumstances. This is the standard that is used in
identifying the liability or non-liability of a modern medical practitioner in
terms of malpractice. The liability or
non-liability is determined how other practitioners in the same field would
have managed a patient under the same or similar circumstances.
In traditional medicine, the expected level of care from traditional
medicine practitioners is determined first by the condition of the
patient. Methods, approach, and
philosophy of practice come in second.
This is the reason the identification of the level of care varies from
one practitioner to the next and from one country to another. For example, the standard of care for
Acupuncture practices in British vary from standard of care in Canada.
Even, the difference includes medical colleges within the Canada states.
Also, level of care depend on the medical tradition practiced by a group of
people. The traditional medical
practitioner takes into account first the personality of the patient and the interaction
of the patient with the therapy. Next,
it depends also on the level of skill and competence of the practitioner among
its exclusive counterparts and not among the traditional community as a whole. As such, traditional medicine schools set each
of their own standards that govern their own brand of practitioners and are not
determined by other thoughts.
As a result of the role and nature of duty of care and level of care in
both fields, it is difficult to determine the legal liability for malpractice
of a traditional medicine practitioner compared to a modern medicine
practitioner. Because each practitioner in traditional medicine has a personal
means and manner of treating a patient. However, the standard of care in
traditional medicine is dependent on the qualifications and competencies of a
traditional practitioner. Being so, the
traditional therapeutic model should be measured and assessed according to the
required qualifications of a traditional medicine practitioner and the level of
performance for such practice.
Accordingly, the standard of care and practice in modern medicine is always
uniform and standard despite the existence of the many techniques it has. In contrast to this, traditional medicine is
characterized by independence and personal therapeutic models. Each traditional model has its own set of
standards of care which differ from one traditional therapeutic model to the
next. Each traditional school is
governed by its own independent style and standards of treatment. Modern medical schools, on the other hand,
follow a systematic method of education and training, whereas, traditional
schools follow multiple curriculum and methods of education and training for
its practitioners even if the practitioners live in the same community.
Given the situation mentioned above, the problem, which most types of
traditional medicine are facing at present, is the absence of uniform standards
of practice. It relies on natural
resources for medicine, but it is not based on any scientific evidence that can
prove its effectiveness or efficiency.
Included in this problem are the differences in the practices and varied
learning and training approach of such uses.
As a result, it becomes difficult to determine the standard of care for
a specific practice and general criteria for the practice of traditional
medicine.
In order to solve the problem mentioned above, it is the responsibility of
the law to determine the standard of care in traditional medicine because it is
a legal matter. The law identifies in
cases of malpractice if the standard of care for a patient was considered and
provided especially now that there is an increasing number of malpractices. The
law should also help the patient be knowledgeable of the standards of care
required in administering medical treatments.
Moreover, it is the mission of the law to give protection both to the
public and all medical practitioners.
Lastly, patients must be given protection of their right to choose the
treatment that they want and protection from the treatment without fear of
malpractice.
Critical view
between Traditional Medicine and Modern Medicine
Below are some
given similarities and differences between traditional and modern medicine
based on the definition and limitation of standard of care.
Similarities
(a) The medical practitioner is restricted to follow the
given duties and standards of care stipulated in the field of medicine when
practicing a given profession as the law requires it.
(b) Any act lower than the required level of care or deviation
from the given standard of care that results to injury of a patient is subject
to medical malpractice and legal liability of a medical practitioner.
(c) The primary task of any medical practitioner whether
in the field of traditional or modern medicine is to give care to a patient and
not to achieve any kind of particular result.
(d) The level of care that is required in traditional and
modern practice of medicine stresses the availability of degree of care from
any ordinary practitioner in any given situation.
(e) The task of setting the standards of care in both
traditional and modern medicine is based on the law and is considered as a
purely legal matter.
Differences
(a) The expected level of care from a professional
practicing modern medicine is the degree of skill and competence that is
expected from all professionals belonging in the same level and situation. In contrast to this, the level of care
expected from practitioners of traditional medicine depends primarily on the
nature of the client, with methods, approach, and philosophy of therapy as
secondary.
(b) Unlike modern medicine wherein there exists legality
against malpractice for its practitioners, traditional medicine has no unified
and stable standard of care for its practitioners.
(c) The duty of care of traditional practitioners is
always based on an agreed contract that binds both parties about the
therapeutic relationship. Modern
medicine, on the other hand, either has a contract of agreement or none as in
the case of emergency.
(d) From the point-of-view of the courts of law, the
standards of care of modern medicine are not applicable to a traditional
practitioner. The courts of law prefer
to apply the specific standards for each practice model separately.
(e) The standards of care of a practitioner of modern
medicine are determined by the objective criterion that measures the liability
of a doctor on the behavior of another doctor belonging in the same level and
competence. In traditional medicine, the
standards of care are determined by the skill and professional competence of a
practitioner following the requirements of a therapeutic model.
CONCLUSION
In conclusion, the
standards of care in traditional and modern medicine are obviously very
different from each other. The standard
of care of traditional medicine is linked to the personality of the patient and
the practice done. Traditional medicine
views treatment of a patient in a more personal manner, which becomes the basis
of the traditional medicine practitioner in determining the standard of care
including the legal liabilities that go with it. On the other hand, the
standard of care of modern medicine is based on scientific evidence and
clinical tests which are devoid of the circumstances surrounding a patient. The objective criterion defines and
determines the level of standard of care in modern medicine.
The medical
legislature should bear the important step of organizing and setting the
standard of care in traditional medicine while considering its unique nature,
historical background, and therapeutic philosophy. By doing so, traditional practices will
finally have a stable and uniform set of standards that are dependent on the
professional and legal aspects in order to combat medical malpractices as seen
also in modern medicine. Then, this standard will became applicable from
judicial in determining the liability of practitioners in malpractice cases.
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