The average patient is of the belief that a physician, who prescribes the wrong or unnecessary medicine, should be held liable to that patient based upon the malpractice of the physician. Such, however, is neither the law in New York nor in other jurisdictions. For a patient to recover damages under such circumstances, he/she must prove that the “wrong”, or “unnecessary” medicine was the proximate clause in producing the injury claim.
Simply stated, the patient must establish by a fair preponderance of the credible evidence that the physician’s act was a substantial factor in causing the injury. The keyword here is, “substantial”, which in essence means, that which is reasonably supported by generally accepted medical practices. As such, anecdotal evidence that relies upon isolated or individual experiences suffered by others is insufficient to meet the threshold of what is “generally accepted medical practices”. Such “threshold” standards are established in part through medically recognized clinical trials, scientific articles published in reputable medical journals, or the medical knowledge that is offered by peer-reviewed specialists who by experience and reputation set the “generally accepted” medical standards applicable to the given situation.
Under our present rules, a blanket opinion offered by a medical expert that is outside the box of “generally accepted medical science”, will fall short of providing the sufficient medical support required by law. Thus, a naked statement proffered by a plaintiff’s medical expert that the defendant physician’s negligence caused plaintiffs injury, will not meet the required threshold necessary to raise an issue of fact that can then be presented to a jury for its determination. As such, an unsupported statement by a plaintiff’s medical expert standing alone will not be sufficient to raise such issue of fact where the defendant claims the absence of “proximate cause”, or “causation”. As a result, the plaintiff’s case, in all probability, will be dismissed by the court as a matter of law.
The very issue was raised recently in Pullman v. Sullivan decided by Justice Lobis in the New York County Supreme Court, and published in the New York Law Journal on August 27, 2012. There, plaintiff Pullman claimed that the defendant physician wrongfully prescribed Lipitor together with an antibiotic which, it was claimed, caused plaintiff’s cardiac injury, requiring the need for a pacemaker.
Even assuming that the drugs prescribed were a departure from good and accepted medical practices, the defendant physician argued that the interaction of the combination of medicine prescribed, did not cause the plaintiff’s injury, and that as such, there was an absence of “proximate cause”.
The Court, in concluding that plaintiff’s medical expert’s opinion was, “vague”, “speculative”, “theoretical”, and not based upon “generally accepted medical science”, dismissed the case.
The Pullman case should serve as a further warning to the inexperienced medical malpractice attorney that the issue of “proximate cause” will be examined very closely by the court even if the treating physician acted below the standard of care initially, and that the case will be dismissed if the only proof of causation that is offered, is based upon speculation, an unsupported medical theory, or anecdotal evidence. Were it otherwise, a physician’s medical malpractice, absent credible medical support that it caused harm to the patient, would be antagonistic to common sense generally, and to well-established law, in particular.