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Archive for February, 2010

School of Thought Rule

You have already read about the New Jersey case, which held that a podiatrist cannot be expected to treat a cardiac arrest, because he is only trained to work below the ankle. However, an Arizona podiatris

t treated an elderly man for pain in the leg and lameness. When the patient asked if they should call in another doctor, the podiatrist told him it was not necessary, and everything would be all right. The man had a blockage of the artery to the leg; he eventually developed gangrene and had to have the leg amputated. He sued for medical malpractice, alleging that arterial bypass surgery could have saved his leg. He won his case.

What about chiropractors? They believe diseases are caused by pressure on the spinal nerves and cannot be held to the same standard as M.D.’s or D.O.’s. However, they are expected to know when a disease is beyond their skills and refer the patient to a doctor. A Pennsylvania woman consulted a chiropractor about pains in her back. He took a chest x-ray and manipulated her back for over a year. When she did not improve, she went to a doctor who found that she had advanced cancer of the lung. It was visible on the x-ray taken by the chiropractor, and at that time, it was in an early stage. She sued for medical malpractice and won. The chiropractor claimed he was not a radiologist, an x-ray specialist, and could not be expected to read x-rays as well as a specialist. But, the judge said that if he took x-rays, and his patients relied on his reading them, he had a duty to read them correctly.

How About Faith Healers and Religious Counselors?

Your chances of prosecuting a successful lawsuit for malpractice against a religious counselor or faith healer are not very good. Since there are no recognized standards as to what is acceptable practice for faith healing, it is virtually impossible to establish a complaint of malpractice, which is a departure from good and accepted practice.

If a faith healer or religious counselor is connected with a religious organization, he is probably protected by the First Amendment to the Constitution and immune to lawsuit. About the only claim that has much chance of success against a faith healer or religious counselor is if you have a treatable, medical illness and one of them persuades you not to consult a doctor by promising you a faith cure.

In a California case, the parents of a boy who committed suicide sued his religious counselor for malpractice. They lost the case because: 1.) a religious counselor is not a psychiatrist and cannot be held to the standard of competence of a psychiatrist, and 2.) all communications between a clergyman and a believer were private and privileged under the Constitution and could not be inquired into by the court.

The Doctor Went Outside His School of Thought or Specialty

There is one common exception, to all these limitations on liability that comes up frequently. Whenever a doctor holds himself out as a specialist, or undertakes a medical or dental case that should be handled by another school of thought, medical or dental specialty, he can be held to the standard of that specialty.

If your family doctor treats a serious eye condition, which turns out badly, and you lose the eye, and he says, “It could not be helped. I did my best, but I am not an eye specialist.” Is that a valid excuse? No. If he undertook to do what a specialist should normally have done, he can be held to the level of a specialist. Today, some doctors go outside their field and do things which they are not trained or qualified to do. If it turns out badly, they cannot plead ignorance.

As long as a doctor stays within his area of expertise, he is protected by what lawyers call the presumption of competence, which means the law believes he was competent to do whatever he did. You have the burden of showing he did something wrong. He does not have to prove he did it right. But, if he goes outside his field, that is more difficult for him. It is more difficult to prove you did not do something wrong.

Podiatrists and oral surgeons may commit malpractice in their own field or if they go outside their field. For instance, if a podiatrist tries to do knee surgery or an oral surgeon works on the ear or neck, and anything goes wrong, they are on the defensive.

There are two exceptions to the standard of care that you have to be aware of, the respectable minority and error of judgment rules. They will be discussed in our next post.

The State of the Art Rule

This means the doctor has to be up-to-date and in step with modern medicine or dentistry. For example, we know today that lumpectomy (non-disfiguring removal of individual lumps) and simple mastectomy pr

oduce better results in most cases of breast cancer than the disfiguring, disabling radical mastectomy that was popular with breast surgeons for many years. Today, a doctor who rushes in and does radical breast surgery, without considering conservative treatment, is not up to the state of the art and is guilty of malpractice.

In a New York case, a 19 year-old girl had been treated with radioactive cobalt for Hodgkin’s disease (cancer of the lymph nodes). The cobalt treatments were successful, and she could have lived a normal life, except for susceptibility to a severe reaction if she were ever given a blood transfusion. One day the hospital mistakenly gave her a transfusion that killed her.

At just about that time, it was discovered that the transfusion reaction could have been prevented by irradiating the blood (exposing it to radiation). When her family brought suit, the case hinged upon whether using irradiated blood was the “state of the art” at the time she died. If it had happened two or three years earlier, it would not have been, and there would not have been any malpractice. If it had happened two or three years later, when irradiating blood had been written up in all the medical journals, it would have been a clear-cut case of medical malpractice. The result? The lawyers finally compromised.

The Rule Is: No one can tell what medical or dental advances will be made next year or even tomorrow. A doctor only needs to practice according to the state of the art today. Even if new developments have been reported in the news, he cannot be criticized for failure to utilize them until they are officially recognized and accepted by the medical or dental profession.

The School of Thought Rule

A doctor can only be judged by the standards of his school of thought. A podiatrist (foot doctor) cannot be held to the standard of an orthopaedic surgeon. An otolaryngologist (ear, nose, and throat specialist) need not be an expert in dentistry. The schools of thought are:

Allopathy (M.D.) – Medical Doctors.
Osteopathy (D.O.) – Osteopaths used to be bone manipulators, but most osteopaths now receive the same training as M.D.’s.
Homeopathy - Homeopaths believe in giving very small doses of drugs. There are few of them practicing. Most homeopaths have become M.D.’s or D.O.’s.
Podiatry (D.P.M.) – Podiatrists work below the ankle and are recognized experts in foot disorders.
Dentistry (D.D.S. or D.M.D.) – Doctor of Dental Surgery or Doctor of Dental Medicine indicate the degree awarded upon graduation from dental school to become a general dentist. There is no difference between the two degrees; dentists who have a D.M.D. or D.D.S. have the same education.
Chiropractic (D.C.) – Chiropractors believe that diseases are caused by pressure on the nerve roots and manipulate the spine. They are licensed to take and read x-rays.
Holistic Healing – Drugless healers who treat the body as a whole and not the disease, usually by diets and nutrition.
Faith Healing – Any one who tells you that you can be cured by faith or belief alone.

     
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