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States May Warn Doctors to Follow Smoker Treatment Guidelines or be Sued for Medical Malpractice



State health commissioners may soon begin warning about medical malpractice law suits which could be brought by smokers against physicians who fail to follow federal and other guidelines in treating them, putting pressure on the medical profession similar to that put on the tobacco industry by earlier smoker law suits.

Public interest law professor John Banzhaf, whom 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 smoking 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, who serves as Executive Director of Action on Smoking and Health (ASH), America's first antismoking organization.

Indeed, the New York City Department of Health has already warned that "because physician intervention can be so effective, failure to provide optimal counseling and treatment [for smoking] is failure to meet the standard of care – and could be considered malpractice."

Also, a medical journal noted 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, given the Public Health Service guidelines' straightforward recommendations, their efficacy in preventing serious disease and cost-effectiveness. . . . a court could have sufficient basis to find that the failure to adequately treat the main cause of preventable disease and death in the US qualifies as a violation of the legal duty that doctors and hospitals owe to patients habituated to tobacco use and dependence.”

The US Public Health Service’s Clinical Practice Guideline for Treating Tobacco Use and Dependence provide that “every patient who uses tobacco should be offered at least one of [two] treatments.” Many major guidelines by other respected medical bodies – e.g., the Agency for Health Care Policy and Research, U.S. Preventive Services Task Force, etc. – also require that smoking patients receive not just warnings but also treatment, including counseling.

However, as the Partnership for Prevention recently noted, in a report sponsored by the Centers for Disease Control and Prevention, the Robert Wood Johnson Foundation, and the WellPoint Foundation, fewer than 30% of smoking patients receive even the minimal treatment required by the guidelines. The report estimates that this refusal by physicians and hospitals to follow the Guidelines kills more than 40,000 smokers each year.

Banzhaf's letter to the health commissioners suggested that: "Since many in the antismoking community (including hundreds of organizations, many with their own attorneys), as well as lawyers associated with antismoking groups and other lawyers in private practice, are now considering how to proceed with the article’s litigation suggestion, the need to remind doctors of their responsibilities and of their potential legal liability is paramount – especially since their continued refusal to even warn many patients about smoking, much less to follow the guidelines’ requirements of effective intervention, kills over 40,000 patients each year."

"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 major target of litigation."

PROFESSOR JOHN F. BANZHAF III
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 // http://ash.org