If a doctor prescribes experimental drugs, is this medical malpractice?
UPDATED: December 15, 2019
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When a doctor prescribes experimental drugs, there are certain circumstances that can lead to medical malpractice. However, this is not always the case. To be held liable for medical malpractice the doctor must provide the patient with substandard treatment that results in injury to the patient.
Standard of Treatment and Informed Consent
Treatment is substandard when it falls below the standard of treatment that a reasonable doctor in the same profession would provide. The standard of treatment that is expected by a doctor when prescribing an experimental drug is called informed consent. This means that a doctor is expected to inform the patient that the drug is in fact experimental, as well as be knowledgeable about, and inform the patient of, the drug's known risks. The patient always has an absolute right to decline the prescription. If the patient does decide to use the experimental drug, the doctor should have them sign a consent form.
When Malpractice Results from Prescribing Experimental Drugs
If a doctor fails to inform the patient of the experimental drug's known risks; if he or she fails to adequately research the known risks before prescribing it, and if the patient is later injured by the experimental drug, the doctor may be held liable for medical malpractice. However, even if the doctor researches the drug, provides the patient with all of the drugs known risks, and has them sign a consent form, this does not give the doctor 100% protection against liability for the consequences of the experimental drug. For instance, many experimental drugs require the doctor to strictly monitor their patient for potential harmful side effects. If a doctor fails to diagnose or ignores harmful side effects that come from the use of the drug, this may be grounds for malpractice.
Malpractice & Experimental Drug Intended Use
If a doctor prescribes an experimental drug for a type of illness or injury that the drug is not intended for, this can be grounds for a medical malpractice suit. Liability for a malpractice suit can also arise from prescribing the experimental drug longer than is permitted or necessary, or subjecting the patient to an overdose of the experimental drug. Malpractice liability can also result from a negligent misdiagnosis that leads the doctor to prescribe the experimental drug. For example, if a benign tumor was diagnosed as malignant, and a doctor prescribed the patient an experimental chemotherapy, which resulted in harm to the patient because of the misdiagnoses - this would be grounds for malpractice liability.
Filing a Medical Malpractice Lawsuit
If you have been injured by an experimental drug, you may want to consult with a medical malpractice attorney in your area if you think a medical professional is at fault. A medical malpractice attorney will help you determine if there are grounds for a medical malpractice claim. An attorney is also helpful in filing a medical malpractice lawsuit, as these types of claims can quickly become complex litigation. Even if there are no grounds for medical malpractice, there may be grounds for a product liability suit.
Consulting a Product Liability Attorney
If you think there was a problem with the drug manufacturer or marketer, you should contact a product liability attorney. It may be that the while the doctor acted within his or her professional standard of care in prescribing the drug, the drug manufacturer could have acted improperly, or falsified reports to gain approval to test an experimental drug.