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Archive for January, 2012

The doctor who gives you an experimental drug or unauthorized medical treatment is like the owner of a wild animal. Everyone knows that wild animals, like tigers or alligators, can be

dangerous and may attack if they get a chance, so they are not

allowed even one bite. The first time a wild animal attacks somebody, the owner is liable, because he should have expected it and taken precautions to protect the public. Any drug, treatment, or device that has not been approved by the Food and Drug Administration (FDA) is like a wild animal. The doctor does not have to know that you might react badly. He is exposing you to an unnecessary risk just by using it. If it injures you, he is liable.

What if you got an experimental or unauthorized drug from a friend, who brought it into the U.S. from another country? It is possible, but not very likely, that the government might prosecute her for practicing medicine without a license. But, you are out of luck. Since she did not hold herself out as a doctor, there was no doctor-patient relationship and no standard of care. You have only yourself to blame for taking professional advice and medicine from a layperson.

If a doctor is going to use a risky or experimental drug, an unauthorized medical treatment or device, he has to explain it carefully and have you sign a special consent form, which outlines all the risks and why it is necessary to take extra risks in your case. If the risks are not fully explained, and you do not consent with your eyes wide open and it harms you, you can sue in strict liability without having to show that the doctor did anything wrong, other than give you a drug, medical treatment, or device that was not approved as safe, or for a particular use, by the federal government.

Did you have a bad reaction to a drug? There was not anything wrong with the medicine; you just had a bad reaction. A doctor gives you an injection of penicillin. There is nothing wrong with the

penicillin, but you are sensitive to it and have a severe reaction. Your husband goes to the hospital for a kidney x-ray, and the technician gives him an IV injection of a dye that contains iodine. Thousands of people have these x-rays every day with no harmful effects, but your husband is violently allergic to shellfish and anything that contains iodine. He goes into shock and almost dies. Can you bring a lawsuit?

There is an old saying that a dog is allowed one bite. Actually, a dog is not allowed any bites. In olden times, when people were kicked or run over by horses, gored by bulls, or bitten by dogs, the law said the owner of a tame, domestic animal cannot be held liable for harboring a dangerous animal, unless he has some warning that it is dangerous. So, an owner could not be sued the first time a dog bit or a horse kicked. But, after the first attack, the free car insurance quotes owner had what lawyers call scienter, which means he knew the animal was dangerous, and anybody else it attacked could sue him.

That same older legal theory applies to medicine today. If a doctor gives you a drug and does not know you are allergic, it is not his fault if you have a reaction. However, if he knows you have had a reaction, or are likely to develop one, and gives you the drug, he has scienter and is responsible for whatever happens. If the drug is one which causes a lot of reactions, the doctor must also check carefully to learn whether you might be allergic to it.

A South Carolina woman went to the hospital for removal of a kidney stone. When she gave a history of sensitivity to penicillin, it was clearly recorded in her chart. But, just before surgery, the surgeon ordered IV administration of another drug, which should never be given to patients with a sensitivity to penicillin. The woman died on the operating table. Her family sued and won, because the doctor committed medical malpractice by failing to read her chart and gave her a drug to which she was very likely to be sensitive.

The Rule Is: If you are allergic, or have sensitivity to a drug, the doctor is only responsible for a bad reaction if he knows, or should have known, about your sensitivity. But, this does not excuse carelessness. He must still double check your medical history before giving you a drug that is apt to cause a bad reaction, especially if it is one that is known to be dangerous or cause a lot of reactions.

     
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