ASH Asks State Health Commissioners to Threaten Physicians with Malpractice Suits for Failure to Prescribe Pharmaceutical Therapy for Smokers

The national anti-smoking group Action on Smoking and Health (ASH) has written to the state health commissioners, asking them to threaten physicians in their states with malpractice suits if they fail to follow national smoking cessation guidelines, which require the use of pharmaceutical therapy for all patients.

A February 11 press release from ASH states: "Public interest law professor John Banzhaf, who the media has dubbed 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," has written to the health commissioners of the fifty states suggesting that they warn their state's doctors about such law suits based upon a recent article in a leading medical journal and an even more recent study about saving smoker lives. The letter notes a recent study which shows that physicians are killing more than 40,000 American smokers each year by failing to follow federal guidelines which mandate that the doctor warn the patient about the many dangers of smoking and provide effective medical treatment for the majority who wish to quit. 'The families of any one of those 40,000 victims - or the hundreds of thousands more who suffer heart attacks, strokes, amputations, blindness, or other problems because of their smoking - could sue physicians for malpractice for failing to follow the standard of medical care mandated by these guidelines,' says Banzhaf."

The Rest of the Story

There are a lot of problems with this action by ASH, not the least of which is that it threatens physicians with bogus lawsuits and that it threatens to tie up the courts with frivolous litigation.

To cut to the chase, there is no valid legal basis for the threatened lawsuits, because in order to prove malpractice, a plaintiff would have to show that the disease in question would not have occurred had the physician followed the clinical practice guidelines. In other words, the smoker would have to show that had only the physician prescribed some sort of pharmaceutical therapy, he would have successfully quit smoking and had he quit smoking, he would not have suffered the disease.

The first showing is impossible, however, because the data clearly show that the overwhelming majority of patients who are treated with pharmaceuticals for smoking cessation are not successful in quitting.

In court, a smoker would have to show that it is more likely than not that had he received the pharmacotherapy as outlined by the clinical practice guideline, he would have successfully quit smoking. This means that there would have to be greater than a 50% success rate for this therapy. Unfortunately, the success rate for pharmacotherapy is much worse, on the order of only 10% (and that is in the setting of clinical trials).

While it could, potentially, be considered negligent for a physician not to warn his or her patient to quit smoking, the plaintiff cannot win such a malpractice case unless he shows that the failure to give the advice was what caused the injury. The injury is not the smoking, but the illness or disease that allegedly resulted from the smoking.

Remember that the risk of the disease in question is not inherently and directly related to the provision of advice to quit smoking. Instead, it is inherently and directly related to the patient's behavior - smoking. Thus, the damages are directly tied only to the patient's actions, not the physician's actions.

The connection between the purported damages and the physician's action are indirect. The postulated link is that the physician's action could have changed the patient's behavior, which in turn could have prevented the injury. Thus, to support both of the links in this purported causal chain, the plaintiff would have to show that the physician's action would, more likely than not, have changed the patient's behavior.

This cannot be shown unless there is evidence that intervention by the physician can result in a greater than 50% smoking cessation rate. I assure my readers that I am familiar with the literature on smoking cessation and the role of physician advice and there is no evidence that the success of physician intervention is anything close to 50%. In reality, it is probably a lot closer to about 6%.

Is pursuing baseless lawsuits and threatening physicians with them really what the tobacco control movement wants to be doing?

The rest of the story, it appears, is that the answer is yes.