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The “Respectable Minority” Defense and Unorthodox Medical Treatments

If you elect to use a new or experimental medical treatment—one accepted, say, by a growing minority of doctors—and something goes wrong, can you sue for malpractice? Perhaps the experimental treatment fails where a more conventional one would have succeeded. Perhaps the physician trying the experimental procedure is somewhat unfamiliar with its details and it isn’t executed properly. Or perhaps, after it fails, new medical literature emerges that definitively proves that it never had any hope of working, that the doctors who advocated for its use were wrong. In this last case especially, one has to wonder whether malpractice liability isn’t appropriate.

An Old Case Is the Key

The legal doctrine that governs these questions was settled, however, in 1954 in a case called Baldor v. Rogers. In that case, the plaintiff developed a tumor on his lip. He went to a physician who prescribed injections. Even at the time, it was generally accepted that surgical removal and chemotherapy were more effective treatments. However, some physicians believed that these treatments wouldn’t be as effective as the injections that were prescribed. The injections failed to treat the patient’s cancer, which worsened and spread to his chin. And there was evidence entered into the record at trial to suggest that, if the patient had simply received one of the more conventional procedures—like chemotherapy or surgical removal—he would have had a much better outcome. He therefore claimed that the physician, in suggesting that he use the more experimental injection procedure, had committed malpractice.

The case was appealed all the way to the Florida Supreme Court. In a split decision, the Court established what has come to be known as the “respectable minority” doctrine. They ruled that, so long as respectable minority of physicians endorse the treatment and believe that it will be effective, the doctor cannot be held liable for medical malpractice solely for recommending it. The court said that their reason for the rule was to avoid involving the judiciary—or the judgments of lay jurors—in the expert medical judgment of what is or is not a valid treatment. “We are not physicians,” the Court wrote, “and we have no light on the subject except such as is shed by the testimony of physicians, who are not in accord.”

This doctrine, which is still recognized as part of the law of medical malpractice today, can therefore be invoked to defend the actions of a physician who advises one to undergo a dangerous or risky treatment. Its applicability means that, in a medical malpractice action based on an experimental or risky procedure, the defendant physician may be able to argue that the procedure is still accepted by a “respectable minority.” The fight, therefore, becomes about what constitutes one; there’s a fine line between a minority treatment and unacceptably fringe medicine. The defense, however, does not permit one to avoid liability for incorrectly using a minority treatment.

Get Counsel Who Knows the Law

If you’re considering bringing a medical malpractice action, you want counsel who understands all the defenses the physician could raise—even if they were invented in 1954. You want knowledgeable malpractice attorneys like those at Gary Roberts & Associates, P.A..

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