In response to my letter to the editor arguing that the idea of filing malpractice lawsuits against physicians for failing to adhere to the Public Health Service smoking cessation guidelines is legally unsound, Action on Smoking and Health (ASH) submitted a letter outlining a differing viewpoint.
The response begins, not surprisingly, by insulting me and presenting a self-aggrandizing testimonial to ASH's executive director:
"Dr. Siegel makes some interesting observations but, as a physician rather than an attorney, he appears to be out of his field, and - with all due respect - perhaps out of his depth (despite his participation in some tobacco litigation), in bluntly stating that the "“legal reasoning in [the] malpractice article is not sound."” As someone with almost 40 years of experience with anti-tobacco litigation -– and who has been called the "Ralph Nader of the Tobacco Industry," an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer,"” "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," let me speak frankly in suggesting from a lawyer'’s perspective why the legal reasoning is sound and why the legal threat is very real."
Then, ASH goes on to acknowledge my basic point that it is "true that the plaintiff must prove ... that he would have quit if only the physician has warned him and assisted him in doing so."
However, rather than presenting sound scientific evidence to support the contention that physician advice to quit smoking is the critical factor in the failure of most smokers to quit smoking, ASH instead argues that if you flood the courts with enough cases, eventually the heartstrings of a jury, somewhere, will be touched enough to side with the plaintiff. And by doing so, the threat of this litigation will be enough to get doctors to implement the PHS guidelines, regardless of the apparent weakness of the legal principle upon which these lawsuits are based.
For example, ASH argues that: "The question of whether the plaintiff would have heeded the advice and assistance of the physician if he or she had given it is a factual issue for the jury to decide, and the issue must be left to them if reasonably people could possibly differ as they obviously can on this question. Experience clearly suggests that, faced with a sympathetic and very ill plaintiff who swears that he would have heeded a warning if it had been given, and a physician who (as his lawyer will argue) "“thumbed his nose at his professional obligation, ignored the simple guidelines of a governmental commission and the unanimous advice of his peers,"” the jury'’s sympathy for the plaintiff will incline them to award him some damages, even if empirical evidence as well as common experience suggests how hard it often is to quit."
ASH further argues that: "The same is true with regard to the burden on the plaintiff to prove that, had he quit, he would not have had the medical problem of which he now complains. Sympathy may well be more important in a jury'’s consideration of this issue than dry empirical and statistical evidence and related arguments put forth by "“rich doctors and their greedy insurance company lawyers."” ...
And ASH tops off its argument by stating that: "Antismoking lawyers do not have to win every case, most cases, or even one out of every ten cases to put strong pressure on hospitals, medical organizations, insurance companies, and ultimately on individual physicians to begin complying with the guidelines to avoid the risk of being sued and the possibility -– however large or small it may appear -– of losing such a law suit."
The Rest of the Story
First of all, by ASH's own logic, ASH is completely out of its field in commenting on this issue because its executive director, unlike me, is not a trained epidemiologist who is skilled and experienced at interpreting the data on the effectiveness of smoking cessation interventions. ASH is apparently out of its depth in claiming expertise on the epidemiologic research on the effectiveness of physician-centered and pharmaceutical-centered smoking cessation interventions. And by its own logic, ASH is out of its field in commenting at all on what is appropriate or inappropriate for physicians to do since its executive director, unlike myself, is not a physician and has never so much as treated a patient. I would not descend to that level in responding to a colleague, but it is worth pointing out how ASH shoots itself in the foot by sinking to this level.
Second, ASH never addresses the substantive issue of my letter: that it would be difficult if not impossible to prove that a smoker would have quit had only a physician advised him to because the success rate of physician-centered and pharmaceutical-based smoking cessation interventions is dismally low and it would be easy for the defense to present compelling evidence that more likely than not, a smoker would not have been successful in quitting even if he had received advice and a prescription from the physician.
In fact, ASH readily admits that this is one of the key showings that would have to be made.
Instead, what ASH essentially argues is that despite the scientific evidence -- the "empirical and scientific evidence" which clearly shows that the overwhelming majority of smokers do not quit when advised to by a physician and given NRT treatment -- it is prudent to tie up the courts with these malpractice lawsuits, threaten the well-being of physicians, and significantly jack up health insurance rates because of the off-chance that a sympathetic jury somewhere might ignore the statistical evidence and be swayed, instead, by emotion.
Friends - this is exactly the opposite of what I think the justice system is supposed to be about. I don't view it as a crapshoot, where you threaten as many doctors as you can in order to exact one non-science-based, purely emotional success in order to scare physicians so that they have no choice but to do what a couple of fanatical anti-smoking advocates and groups want them to do.
I don't believe that you threaten people with million dollar lawsuits based on admittedly frivolous grounds, just hoping to convince a jury here or there to put science and statistical evidence and reason aside and reach a verdict based solely on emotion and spin (the portrayal of doctors and insurance companies as being greedy).
I don't believe that you use the justice system to scare people into your own preferred course of action in the absence of a solid and defensible legal principle that is reasonable and not a crapshoot that relies upon dismissal of science and reliance on emotion.
In many ways, ASH's response to my letter is more disturbing than the original article. While I disagree with the legal premise of the original article and think it would be a travesty to tie up the courts with frivolous lawsuits that lead to increased health care costs, at least the authors of the original article can simply be faulted with having produced a poor argument. In contrast, ASH actually makes the argument that the legal soundness of a lawsuit is of no consequence - the only thing that really matters is whether the litigation is effective in putting enough of a scare into the targeted group so that it changes its behavior out of fear. Thus, while the authors of the original article may simply have produced a poor argument, the group authoring the response to my letter is actually promoting what I view as the destruction of the integrity of the justice system.
There are two other arguments made in ASH's response that deserve comment.
First, ASH argues that juries in the proposed malpractice cases will be instructed to assume that patients would have quit smoking if their physicians had warned them of the need to quit. "In most jurisdictions, a judge will charge the jury that there is a legal presumption that the plaintiff would have heeded a warning, and this jury charge is usually given even regarding small-print routine warnings on tools, drugs, etc. which were merely inadequate rather than nonexistent. This presumption - which in effect shifts the burden on this issue onto the defendant - is likely to be far stronger where the specific face-to-face warning from a physician mandated by the guidelines was not even given, since judges as well as jurors know that warnings from authority figures in white coats are likely to be far more effective that tiny-print warnings on jars or packages."
Unfortunately, ASH is mixing up consumer product safety law with malpractice law. The issue is not whether some company should have put a warning on its product - tools, drugs, etc. - but whether or not a patient has suffered damages that were directly caused by physician negligence, and would not have occurred had the physician taken the action that the plaintiff claims was not done out of negligence. It may be convenient to mix up these two situations as the lay public may be misled about the legal soundness of these cases; however, in the courtroom, no judge in one of these cases will give the jury an instruction which basically forces it to accept as fact the key legal question in the case.
Second, ASH criticizes my argument that these proposed cases will be difficult to win because plaintiffs must show that they would more likely than not have quit had the physician followed the PHS guidelines and since this intervention is successful less than 50% of the time, it is more likely than not that it would not have been effective. ASH criticizes this argument on the grounds that in malpractice cases, physicians are often found to be negligent even if the patient most likely would not have survived anyway, and the negligent action merely increases the odds of non-survival.
ASH argues: "Dr. Siegel seems to suggest that any malpractice action based upon a physician's failure to warn a patient of a potential risk, or to suggest a treatment (medication, operation, or other course of action), is doomed to failure if the proposed treatment is less than 50% effective: 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. In other words, by this reasoning, it would appear that the medical community would have no legally enforceable duty to do anything at all (including refraining from negligence) where the chance of success - much less the patient's ultimate chance of survival - is less than 50%. But several courts have ruled directly to the contrary, finding that even plaintiffs whose conditions were so grave that their chance of survival was less than 50% still have a valid cause of action against a physician whose negligence decreases those already poor odds."
ASH's argument fails because the analogy is not valid. It is true that an intervention to treat a patient for a disease does not have to be more than 50% effective for it to represent negligence not to implement that treatment. However, this is true for the treatment of a disease. Smoking is not a disease. It is a behavior. And the importance of the effectiveness of advice to quit smoking is therefore not relevant to the determination of whether the action was negligent, but instead, it is relevant to the issues of damages and causation.
It could, potentially, be considered negligent for a physician not to warn his or her patient to quit smoking. However, 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.
In the case of a severely ill patient, for example, who is not put on life support and ultimately dies, it is still malpractice even if the patient likely would not have survived. It is clearly negligent because any reasonable physician would provide life support in such a situation. And there is direct causation between the negligent action and the injury, because in this case, the injury is the damage that was caused by the failure to put the patient on life support. Without question, that failure harms the patient, regardless of the fact that the patient may have died anyway. The patient invariably died more quickly because of the negligent action. Thus, there are damages and those damages were caused directly by the negligent action. The risk of death is inherently and directly tied to the provision of life support. The odds of death may not go from 49% to 100%, but even if they go from 90% to 100% there is a documentable, significant harm done by the negligent action.
In a "smoking" malpractice case, however, the only damage that can be claimed is the disease that was allegedly caused by the smoking. And the risk of that disease 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.
After reading the response of one prominent anti-smoking group to my comments, I am led to ask the question, "Is this really what we as a tobacco control movement want to be doing?" The rest of the story, then, is that the anti-smoking movement is, as I have repeatedly warned, spiraling quickly out of control and beyond any sense of reason.
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