The letter, entitled "Legal Reasoning in Malpractice Article is Not Sound," stated the following:
"I find the argument provided in the paper to be non-compelling because it fails to provide any reasonable argument for how the 3rd showing in a medical malpractice case - that there is a causal relationship between the breach of duty and the incurred injury - could possibly be met in a smoking malpractice case. This would require proving to the jury that the physician's failure to warn the patient to quit smoking was the cause of the injury sustained by the patient.
This would imply that 3 things would have to be shown: (1) that the patient would have quit smoking if only the physician had advised them to quit and followed the PHS guidelines; and (2) that the reason the patient did not quit smoking was that the physician failed to advise them to quit and failed to follow the PHS guidelines; and (3) that if the patient had quit smoking, he would not have developed the injury.
These seem to be unreasonable, if not impossible, points to prove. How can we possibly know that a patient would have successfully quit smoking if only the physician had followed the guidelines? Unfortunately, the overwhelming scientific evidence cited in the paper supports a conclusion that the patient would most likely not have quit smoking, even if the physician had followed the guidelines. The data demonstrate that the cessation success rate, even with physician treatment, is dismal. The success rate does not even come close to approaching 50%; thus, it is more likely than not that even with physician advice to quit smoking, the patient would not have been successful in quitting smoking.
The success rates reported in the PHS guideline itself are generally below 20%. This means that it is much more likely than not (in fact 4 times out of 5) that a patient who goes through the suggested intervention will fail to quit smoking. I view this as an intractable problem in the use of the PHS CPG in medical malpractice lawsuits for failure to properly treat tobacco dependence. Until such time as there is a truly effective treatment for smoking cessation (one that works most of the time), there really can be no basis for establishing a causal relationship between the breach of duty and the incurred injury.
Finally, it is important to note that one would not only have to show that the plaintiff would have quit smoking had only the physician advised them to quit; one would also have to show that had the person quit smoking, they would not have developed the injury. However, we know that many former smokers still develop smoking-related injuries. It is not clear that one could show that the plaintiff wouldn't have developed the disease even if they had successfully quit smoking, especially for a disease such as lung cancer where risk decreases slowly following smoking cessation."
I will continue to alert readers as subsequent rapid responses to this troublesome, though important, article are published.