New Federal Medical Guidelines Could Trigger Malpractice Lawsuits Against Doctors and Hospitals / / Legal Actions Could Save Over 40,000 Lives Each Year, and Prevent Even More Needless Disabilities

John F. Banzhaf III, Professor of Public Interest Law, George Washington University Law school

2008-05-08 19:15:36 - New federal guidelines issued Wednesday for doctors treating smokers could trigger a wave of wrongful death medical malpractice legal actions, suggests Action on Smoking and Health (ASH), which serves as the legal action arm of the antismoking community.

Indeed, says ASH, there are over 40,000 potential plaintiffs yearly.

The guidelines require physicians not only to thoroughly warn smoking patients about the dangers of smoking, but also mandate that the clinicians provide one of more of the treatments which have been proven effective in helping people quit.

Yet most physicians reportedly fail to do this, and as a direct result a major study shows, more than 40,000 smokers die needlessly. ASH notes that hundreds of thousands more become disabled annually, and could also bring malpractice actions.

Thus, if a doctor in violation of the guidelines failed to provide effective treatment for a smoker, and the smoker subsequently died of a heart attack or other condition - or or become incapacitated by a condition - which was proximately caused by his smoking, the estate could sue the physician for medical malpractice, claiming that the guidelines establish the appropriate standard of care which the physician deliberately breached.

As ASH's Executive Director John Banzhaf, the public interest lawyer who has been called the "Ralph Nader of the tobacco industry," "a driving force behind the lawsuits that have cost tobacco companies billions of dollars," and "the law professor who masterminded litigation against the tobacco industry," suggests:

"If a physician fails to advise a smoking patient of the many risks of smoking - just as he is required to advise patients of the many risks of high blood pressure or C-reactive protein - and to offer effective treatment (as with blood pressure), and the patient subsequently dies or suffers a heart attack, stroke, or other problem as to which the failure to warn and/or treat is a substantial factor, the physician may be held liable in a medical malpractice action for his fair share of the costs."

Banzhaf notes that many medical malpractice actions occur when a physician has to make a quick decision (e.g., during an operation or baby delivery) and there are no clear guidelines that he can rely upon to protect himself from liability.

In contrast, when the majority of U.S. physicians ignore a very clear federal guideline regarding situations which occur every day (i.e., patient visits by smokers), the doctors' failures are deliberate, as well as often fatal.

A recent study found that, although similar guidelines have been in effective for many years, and several educational efforts aimed at boosting compliance have been undertaken, most physicians still fail to follow them, and as a result most patients are denied the assistance they are entitled to.

As a result, the study finds, 40,000 smokers die needless each year, arguably killed by physicians' refusal to provide the minimal accepted standard of care and treatment.

That, says Banzhaf, has lead many in the antismoking community to wonder whether, since all other measures have failed, the only effective recourse to save these lives is a few medical malpractice law suits.

For example, the New York City Health Department has warned doctors that, "failure to provide optimal counseling and treatment [for smoking] is failure to meet the standard of care - and could be considered malpractice."

A recent medical journal article also argued that "the failure of many doctors and hospitals to deal with tobacco use and dependence raises the question of whether this failure could be considered malpractice."

"Since physician malpractice kills over 40,000 smokers annually - more than motor vehicle or product liability accidents - it should not be surprising if antismoking lawyers, as well as those in private practice working on contingency fees, find physicians who deliberately flout federal guidelines to be a new major target of litigation," suggests Banzhaf.

Tobacco companies have been forced to pay out hundreds of billions of dollars in law suits for causing death and disability in smokers.

If many of those needless deaths and disabilities are also being caused by physician negligence in failing to prevent the smokers, some may wonder whether the time has come to add doctors as defendants, not only to compensate smokers injured because they were denied effective treatment, but also as the only effective way to persuade physicians to start doing what a clear consensus of the medical community says they should be doing.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
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