Action on Smoking on Health (ASH) has again called for malpractice lawsuits against physicians who fail to follow the new Public Health Service (PHS) clinical practice guideline for smoking cessation, which recommends that every smoking patient be prescribed nicotine replacement therapy or other pharmaceuticals to aid them in quitting smoking.
In a press release issued last month, ASH writes: "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 or 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." ...
"'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."
The Rest of the Story
There are four essential showings in a medical malpractice case. The plaintiff must show that there exists: (1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) a causal relationship between the breach of duty and the incurred injury; and (4) damages."
The primary reason why ASH's suggestion that failure of physicians to prescribe smoking cessation drugs for their smoking patients represents malpractice is incorrect is that ASH 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 2 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.
This seems an unreasonable, if not impossible, point to prove. How can we possibly know that a patient would have successfully quit smoking if only the physician had followed the guidelines? The overwhelming scientific evidence 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 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 clinical practice guideline 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.
In addition, I think it would be impossible to demonstrate that the physician owes a legal duty to the patient in the first place since prescribing smoking cessation medication to every smoking patient is clearly not a standard of medical practice. In fact, in my opinion, the clinical practice guideline is a highly biased analysis that would be a public health disaster if implemented nationally. It was prepared by experts with severe conflicts of interests with Big Pharma and it has no place in guiding physicians. In fact, they would be better off ignoring it.
I guess I would be a good witness for the defense if ASH is successful in bringing any of these lawsuits.
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