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Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.
A doctor who prescribed oral retinoids to an acne patient is sued by the patient's family after the patient commits suicide. The doctor's career, practice, reputation and everything he holds dear are at risk simply because he tried to be a good doctor. Should he try to defend himself? Will he lose the case at trial?
Dr. Skin has a large dermatology practice with an emphasis on acne. Many of his fellow dermatologists refer to him their most difficult patients. In fact, Dr. Skin prides himself on his ability to manage these difficult acne patients. For twenty years, he has been a strong advocate of using oral retinoids for treatment-resistant cystic acne and has successfully treated many patients.
As would be expected, many patients have had some side effects; all have been manageable. He has seen dose-related headaches, arthralgias, dry skin and eye, as well as occasional nausea and vomiting in some patients. In addition, because of the rare reports of mood changes from oral retinoids, he asks all patients about a psychiatric history.
All of his patients have done well until one (a married highly successful businessman with 3 children), who had virtually no prior difficulty with other acne treatments, shot himself in the head 2 years ago. Although Dr. Skin is saddened by his patient’s death, he assumes this was a rare tragedy that was unrelated to the patient’s treatment.
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Soon thereafter, the deceased patient’s family brings a lawsuit against Dr. Skin, alleging he was negligent in prescribing oral retinoids and that the medication led to the suicide. Worse than that, the family files a wrongful death lawsuit against Dr. Skin. Dr. Skin, of course, is beyond horrified and hires an attorney to defend himself.
After extensive discussions, the attorney and defendant physician seek to have the case thrown out of court. However, during the mandatory lawsuit required discovery period, it is determined that other patients given oral retinoids have also committed suicide. Based on this information, the judge in the case denies Dr. Skin’s motion for summary judgment to have the case thrown out of court. With this information, plaintiff’s attorney seeks to settle the case with Dr. Skin for $6 million.
Dr. Skin becomes very depressed. His career, practice, reputation and everything he holds dear are at risk simply because he tried to be a good doctor. Should he try to defend himself? Will he lose the case at trial?
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Four elements must be proved
A medical malpractice case, based on negligence, can only be won by plaintiff’s attorney if 4 elements can be proved in a court of law. These elements are
A physician is required to perform his duty as would any reasonable physician. If he does not do so, he has breached that duty. Then, if there is a nexus between the breach of that duty and damages, the plaintiff may win her lawsuit. Clearly, the death of Dr. Skin’s patient has the requisite element of damages. Those damages are measured by the economic value that would be present if the deceased was still alive. However, did Dr. Skin perform in accordance with a reasonable duty and if not, did the breach of that duty lead to his patient’s death?
If Dr. Skin had prescribed oral retinoids and not asked about a history of depression, then one might argue he had breached his duty. This, however, assumes there is scientific evidence that oral retinoids actually do lead to an increased incidence of suicide by patients taking the medication.
Dr. Skin did ask his patient about a psychiatric history. Although the judge may not have granted Dr. Skin’s motion for summary judgement, the plaintiff’s attorney will need to prove that oral retinoid patients have a higher incidence of suicide. This will be problematic for the plaintiff’s attorney. Dr. Skin may have to defend the lawsuit, but is unlikely to lose the case.