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Using older drugs or surgeries instead of newer ones Medical Malpractice

Discussion in 'Professional, Medical Malpractice' started by NE_medical, Oct 16, 2020.

  1. NE_medical

    NE_medical Law Topic Starter New Member

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    Hi,
    I am looking for information or cases related to a doctor's choice of drugs or surgery.

    Are there cases where a doctor is sued for using a less effective drug or surgery? What I'm looking for would be cases where a newer drug might be, for example, 20% more effective than an older option, or the newer drug has fewer side effects like an uncomfortable but ultimately transient rash.

    I'm not thinking of cases where the treatment used causes serious long term effects or where data is hidden but instead that the doctor used an older option that is inferior but arguably not serious or only marginally worse.

    Thanks for any assistance or suggestions.
     
  2. justblue

    justblue Well-Known Member

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    For what reason do you want this information?
     
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  3. adjusterjack

    adjusterjack Super Moderator

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    Why are you asking? Tell us what happened to YOU and the state in which you are located.

    Otherwise, the question is too general and hypothetical to take time with.
     
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  4. zddoodah

    zddoodah Well-Known Member

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    Just FYI, no one is going to do that sort of case research for you, but you can do some yourself at scholar.google.com.

    I feel relatively confident that this sort of thing has happened many times.

    Hire a lawyer.
     
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  5. Tax Counsel

    Tax Counsel Well-Known Member

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    There might be. But understand that older procedures and drugs may still be effective for the problem that the patient has and thus might still meet what the medical community says is the acceptable standard of care in that situation. Just because it is older or a bit less effective doesn't make it bad. Let me give you an example. I have a medical condition with symptoms that can be treated with a couple different drugs. One is fairly new and clinically shown to be more effective. It is the best choice if symptoms are severe. But it is also much more expensive. For milder symptoms, the older, less effective drugs do just fine. And since insurance won't pay for the more expensive drug in that case, that drug is the best choice for me. It is certainly not malpractice for the doctor to prescribe it in that case.

    As a result of what I said above, in order to have a case here the patient would have to show that prescribing that drug was malpractice, i.e. that prescribing the drug fell below the minimal standard of care that is acceptable in the medical profession for that situation. It is not enough that the doctor might have made a slightly better choice. In order for the plaintiff to win, the situation has to be that no competent doctor in that situation would prescribe that drug. That determination can only be made by looking at all the facts behind the doctor's decision to prescribe the drug.

    Even if the choice to prescribe the drug was malpractice, if there was no harm to the patient or the harm is minor then it is generally not worth bringing a malpractice claim because it is expensive to sue for malpractice and the plaintiff doesn't get his legal fess paid by the doctor if he wins. So in most instances he needs to have potential damages that significantly exceed the cost of litigation to make pursuing that malpractice claim worthwhile.
     
  6. army judge

    army judge Super Moderator

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    You betcha.


    Happy hunting.

    “A computer search would have given me a list of pertinent cases, but without that I had to read everything. That is harder by far, but you end up learning a lot more. I was forced to remember cases because making copies of everything was too expensive. Keeping cases in your head is good, too, because cases are like puzzle pieces floating around in your mind, and sometimes, in moments of creativity, they fall into place and form a picture. If they were words on a screen that you could pull up anytime you wished, that phenomenon wouldn't happen as easily.”
    ― Shon Hopwood, Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption
     
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