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Wednesday, December 06, 2006Anti-tobacco lawyers who have been so successful suing cigarette makers, and companies which expose their workers to tobacco smoke, now have a new target as part of their latest published strategy -- sue doctors who fail to treat smoking as the serious medical problem it is. The key to the law suits is the existence of so-called Clinical Practice Guidelines put out by the U.S. Public Health Service, one of which mandates that physicians fully advise smokers of the health risks of smoking (as they are required to do with other health problems), and then to provide a course of treatment, including treatment for nicotine addiction. Courts frequently use such guidelines to determine what duties doctors have towards patients, and to impose liability for any breach of such duties. "Since almost half of all physicians apparently do not even advise their patients about the major health risks posed by smoking, much less lay out a course of treatment as they would with diabetes, high blood pressure, or other medical problems, and because this failure to warn can lead to debilitating heart attacks, disabling strokes, and death itself, there should be little problem finding potential plaintiffs with sufficient damages to encourage private lawyers to take on the cases," says public interest law professor John Banzhaf, who has been called "the law professor who masterminded litigation against the tobacco industry." This new tactic appears in an article just published in a journal devoted to anti-smoking strategy, and was written jointly by a Professor of Medicine well known for his successes in the anti-smoking area, and by an activist attorney who shares his interest in the problem. Prof. Banzhaf thinks such law suits can be a very effective strategy for several reasons. First, the "white coat effect" -- where patients are far more likely to heed the health advise of physicians than warnings, public service announcements, or other educational programs -- is well documented. Second, doctors have a very high legal fiduciary duty to their patients, a legal principle which dramatically increases the chance of a successful law suit. Third, doctors, unlike tobacco companies and large companies, are very likely to shy away from law suits, regardless of their chances of actually being found liable. If the law suit charges deliberate neglect of the patient's rights and health, as mandated by federal medical guidelines, and as practiced by many major medical institutions, doctors -- and hospitals, medical institutions, and malpractice insurers -- are even more likely to treat smoking more effectively than in the past to avoid even the risk and adverse publicity of such a law suit. The concept of suing physicians for malpractice when they fail to adequately counsel and assist their patients to quit is not new. Banzhaf suggested it several years ago. Even earlier, the New York City Health Department warned that, because physician intervention can be so effective, failure to provide optimal counseling and treatment is failure to meet the standard of care -- and could be considered malpractice." But now, Banzhaf notes, guidelines for such law suits have been published in a major journal, there are official federal guidelines to back up the plaintiffs’ arguments, and Banzhaf’s group, Action on Smoking and Health (ASH), says it is considering helping to organize and bring such legal actions. So, warns Banzhaf, physicians who are not yet part of the solution to the problem of smoking may well begin being treated as one of the causes, and held legally liable for their inaction. Now tell me again why our tort reform system does not need reformed? posted by Sydney on 12/06/2006 08:53:00 AM 5 comments 5 Comments:
A doctor, an architect and a lawyer were talking about the oldest professions.
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Holly cow. Here is another disclosure we patients will have to sign off on. Every time I go to the doctor's office or the hospital, I get writer's cramp from all the disclosures I have to sign.
"I am going to sue the Trial Lawyers Association for the physical and emotional distress these forms cause me."
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This is the tip of the iceberg. Then come suits for failure to document counseling for seat belt, cell phone and helmet usage with motor vehicles. Failure to question for domestic violence or alcohol abuse in the absence of presenting symptoms. Pediatricians will be negligible for not counseling parents about bike helmet use, swimming pools, childproofing the house, car seats, etc. etc. I do not think this lawyer is the first to think this up, and I bet a search through FindLaw could find many such cases already.
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So how many suits have been filed that justify some "reform" to deal with this problem?
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