November 18, 2021 by Tom Roberts, Esq.
The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering. The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.
Code of Medical Ethics Opinion 1.1.1
Common Law Relationship Between Doctor & Patient
Common law recognizes a special relationship between a doctor and his patient. “The common law required the physician, once engaged by the patient, to obtain the informed consent of the patient to a proposed form or course of treatment by disclosing only those risks incident to the proposed treatment that a reasonable practitioner would disclose under the same or similar circumstances.” Wilson v. Scott, 412 S.W.2d 299, 302 (Tex. 1967) (op. on reh’g)
Limitations on treatment selection of treatments (illegal drugs off-limits)
Patients have a constitutional right to access treatment for pain or illness, but the “selection of a particular treatment, or at least a medication, is within the area of governmental interest in protecting public health.” See Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980); Rutherford v. United States,616 F.2d 455 (10th Cir. 1980). (Cases holding individuals do not have a substantive-due-process right to access Laetrile, a non-FDA-approved drug touted as a drug useful in the treatment of cancer. (Laetrile or laevomandelonitrile (C14H15NO7) is made from apricot pits, similar and often confused with amygdalin C20H27NO11), a compound found in bitter almonds, macadamia nuts, carrots, celery, bean sprouts, millet, flaxseeds, buckwheat, apricot pits, etc. In the body, Amygdalin is converted into hydrogen cyanide which inhibits cells from using oxygen and leading to the destruction of the cell. Journal of Microbiology, Biotechnology and Food Sciences)
Standing Remains An Issue
In United States v. Oakland Cannabis Buyers’ Coop. (OCBC), U.S. Supreme Ct. Justice Stevens concurring in a case challenging the Controlled Substances Act’s blanket prohibition on marijuana by distributors, stated “Because necessity was raised in this case as a defense to distribution, the Court need not venture an opinion on whether the defense is available to anyone other than distributors. Most notably, whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here.”
United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 501, 121 S. Ct. 1711, 1723 (2001)
Don't bore the court with "Evidence"
Despite the uncontradicted expert medical testimony showing the medicinal qualities of cannabis, the Court deferred to Congress’s finding in the Controlled Substances Act that marijuana “has ‘no currently accepted medical use.’” Id 532 U.S. at 491 (quoting 21 U.S.C. § 812 (2000)). But that really depends upon the issue – See Stenberg v. Carhart (Carhart I), 530 U.S. 914, 927–29 (2000), where the court rejected the Nebraska’s legislative findings in favor of the right of a woman seeking an abortion to decide the safest methods rejecting Nebraska’s ban on killing a child as it was being delivered. Nebraska statute imposed civil and criminal sanctions for performing an abortion in which the physician “deliberately and intentionally deliver[s] into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [physician] . . . knows will kill the unborn child and does kill the unborn child.” NEB. REV. STAT. ANN. § 28-326(9) By 5/4 decision, the Court ruled the ban violated the Fourteenth Amendment right to substantive due process
Meanwhile across the pond - the UK banishes medical paternalism
“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo … The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative … The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.” Montgomery v Lanarkshire Health Board, 2015 – United Kingdom Supreme Court https://pubmed.ncbi.nlm.nih.gov/27451489/
Logical expansion of the principles behind Virginia's tortious interference with parental rights - recognition of the cause of action for tortious interference with the right of the doctor-patient relationship
Logical expansion of the rationale for tortious interference with parental rights to tortious interference with physician’s rights.
In Wyatt v. McDermott, 283 Va. 685, 725 S.E.2d 555 (2012), the Court held that Virginia law recognizes tortious interference with parental rights as a cause of action. The Court grounded its decision on the recognition by the English common law, as well as various courts throughout the United States, of “the essential value of protecting a parent‘s right to form a relationship with his or her child.” Id. at 692. Given the existence of this right, The court reasoned “that the common law right to establish and maintain a relationship with one’s child necessarily implies a cause of action for interference with that right.” Id. at 693. “To hold otherwise in this case would be to recognize a right without a remedy.” Id. Put another way, “rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the parent–child relationship.” Id. at 692.
Padula-Wilson v. Landry, 298 Va. 565, 574, 841 S.E.2d 864, 869 (2020)
The Tort Should Be Recognized
Virginia law should recognize tortious interference with doctor-patient rights as a cause of action. The Court should ground its decision on the recognition by the English common law of the special relationship between a doctor and his patient and the essential value of protecting that relationship of trust and treatment. Given the existence of this right, The court should reason “that the common law right to establish and maintain a relationship between a physician and his patient necessarily implies a cause of action for interference with that right. “To hold otherwise in this case would be to recognize a right without a remedy.” See Wyatt v. McDermott, 283 Va. 685, 693, 725 S.E.2d 555 (2012. Put another way, “rejecting tortious interference with the physician-patient rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the physician-patient relationship.” Id. at 692.
Application of that protection - tortious interference with the physician-patient relationship
When a physician having fully advised a patient of the risks/benefits and obtaining informed consent to treat a patient with off-label medications, a hospital or other entity that prohibits treatments lawfully prescribed by the physician, knowingly interferes with with the trusted and special physician-patient relationship and should be liable and restrained from such interference.
Practice Note – Standing – the patient would clearly have standing to bring such a claim, but would the physician as well? Va. 8.01-271.1 (B) The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
The materials are prepared for information purposes only. The materials are not legal or medical advice. You should not act upon the information without seeking the advice of an attorney or a physician. Nothing herein creates an attorney-client relationship or a doctor-patient relationship.
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