Medical Malpractice and Asset Protection, Part 7: Real Risks in Today’s Headlines

In part seven of our look at medical malpractice risk we examine specific liability issues from recent media reports and about physicians and healthcare.

The Dangers of “Mob Medicine”

Our last installment in this series covered the potential malpractice risk to physicians for the off-label prescribing of Ivermectin for the treatment and prevention of COVID-19. A recent article published by the American Council on Science and Health, “Ivermectin and the Practice of Mob Medicine” further highlights the dangers to both patients and healthcare facilities when the administration of specific treatment is dictated by a public “mob” comprised of politicians, the public, and lay people, and the courts rather than scientific evidence and the sound judgment of treating physicians. The article covers the legal issues at play, including a recent case overruling the court ordered administration of Ivermectin by a hospital at the demands of a family and a non-treating physician. In part, the court held:

“While this court is sympathetic to the Plaintiff and understands the idea of wanting to do anything to help her loved one, public policy should not and does not support allowing a physician to try “any” type of treatment on human beings. Rather, public policy supports the safe and effective development of medications and medical practices. … What is more, public policy, in this case, encompasses a number of broader issues, including a hospital's standard of care decisions, mandating doctors and nurses to provide care they believe unnecessary, ethical concerns of all doctors involved, patient autonomy, fiduciary duty, accreditation standards for patient protections, obligating one doctor to carry out the treatment regimen/plan of another doctor, interplay of RC. 4743.10, and whether a court should medicate or legislate from the bench.”

Physicians and hospitals across the country are pushing back and refusing to allow the mob to control care decisions, and with those decisions, the standard of care and the liability assumed for providing it. In some cases, the treatment has had actual adverse results that treating physicians and hospitals who are litigating this issue can point to. 

Robotic Surgery Risk – Is the Doctor or the Robot Responsible?

The law, like medicine, is a constantly evolving discipline and it changes and expands with technology. The advent and increasing use of robotic devices that can do specific things with greater dexterity or accuracy than humanly possible with the right human guidance has been good for patients and medicine in general. One question that the law is unsettled on however is the division of liability between the physician responsible for the selection and administration of a specific robotic procedure and the manufacturer of a machine designed for a specific purpose. As an example from Brian Bossetta’s recent article on this issue:

In his essay, Pasquale offers an example of a traditional surgery in which a surgeon slips cutting a vital tendon with the scalpel. But what if, Pasquale poses, that surgeon is using a robotic device designed and marketed with a special component to avoid such a mistake. Who’s liable then? The surgeon or the device maker?

The article touches on a variety of the legal issues at play including the strict liability standard that may be applied by the courts, how liability may be apportioned between parties, the question of adequate training, and points to the importance of documenting the selection and use of a specific device for a specific patient.

Three Examples of Self-Inflicted Business Liabilities by Physicians

Covid-19 Disinformation Leads to License Suspension

An Oregon physician has had his license suspended for allegedly engaging in a variety of unsafe practices with patients in his office including violating safety protocols and actively promoting disinformation on masks and vaccines.

Fertility Clinic Liable for HIPAA Breach in Group Email

A California fertility clinic is held liable in lawsuit brought by a patient after emailing her private information to the individual’s entire work team. Illustrates the need for compliance, training and high limits of data breach liability insurance coverage.

Reputational Damage to Employer Brings Lawsuit

A physician has been sued by his former employer and is the subject of a restraining order for falsely using his former titles repeatedly in media and in interviews. The employer argues that the disinformation that the physician promotes on a variety of COVID-19 and vaccine related issues creates reputational damage and risk for the institution. Essentially, he can say what he wants, but not that he still works here, when he in fact does not.

About the Author
Ike Devji, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at www.ProAssetProtection.com.