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Providing unusual medical treatment isn't necessarily malpractice

The public might believe there is a single “right” way to treat each type of illness or injury, but that is not necessarily so. Without innovation, we would be stuck with the same old cures that might only be marginally effective.

This is not to say that patients should be unwilling guinea pigs for experimental procedures. All we mean is that patients may opt for a newer, less well-known treatment option, based on their doctors’ advice. The treatment may work or it may not, but that is not due to any negligence on the physician’s part.

Ohio law recognizes the right of doctors to offer more than one treatment option. As the court noted in a Court of Appeals decision, “the selection of one [method of treatment] over the other by the defendant doctor is not in and of itself negligent.” The appellate court found that the jury in that case was properly instructed not to find the doctor to have been negligent, just because the doctor performed a non-standard form of treatment.

Indeed, even seemingly radical treatments are not automatically negligent. As we have discussed before in this blog, a common defense to a medical malpractice suit is the “respectable minority principle.” Under that principle, if a “respectable minority” of medical professionals finds the treatment to be valid, and the patient gives informed consent to it, the treatment is not malpractice.

Reasonable creativity in medicine should be protected, not punished.

Source: Clark v. Doe, 695 N.E.2d 276 (Ohio App. 1st Dist. 1997)

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