Medical malpractice laws vary from state-to-state and the following summary is intended to be a general description of issues that may arise in different states concerning the liability of physicians or health care providers for injuries as a result of diet drugs use.

      The foundation of a legal medical malpractice claim is the professional care rendered by a health care provider which is below the standard-of-care within the community of health care providers in which the patient is injured. The second requirement is that the failure to meet the standard-of-care must be a proximate cause of an injury to the patient. Proximate cause is a legal term of art meaning that there must be a somewhat direct cause and effect relationship between the breach of standard-of-care and the injury to the patient.

      For example, a physician's negligent failure to detect a cancer in a patient does not give rise to liability on the part of the physician unless it can be shown that the cancer was at an early enough stage that the patient could have been saved or his survival would have been provably extended or quality of life would have been provably better had the physician not made the error. In other words, if the doctor made a mistake but it did not effect the outcome to the patient, there is no claim for compensation for malpractice. By analogy if I see the driver of automobile run a red light, that driver is clearly negligent but I do not have a claim for damages for negligence against him unless he hits me and physically injures me as a result of his act of disregarding the red light.

      On some occasions, a patient will have a bad outcome as a result of a medical procedure. However, that generally is not evidence by itself that the medical care provider was negligent or committed malpractice.

      These issues are all critical in the evaluation of a possible medical malpractice claim against a provider in a diet drug situation. The manufacturers of the diet drugs did not reveal the potential for heart valve damage to the Food and Drug Administration and did not list it in the Physician's Desk Reference. Therefore, a very strong argument can be made that the physicians prescribing these drugs were not negligent in prescribing them to appropriate patients because they had no way of knowing of the potential for the heart valve damage. The risk of primary pulmonary hypertension was known and was listed in the Physician's Desk Reference, more commonly known as the PDR, therefore, the likelihood of a medical malpractice claim against a provider being successfully made is more probable in a primary pulmonary hypertension case.

      Pondimin which is Fenfluramine was only approved for patients with "morbid" obesity. The Physician's Desk Reference indications for Redux contained a body mass weight index or BMI which set the parameters for recommended patients. These parameters are 30% overweight or 20% overweight in diabetic patients. However, physicians are given generally a degree of latitude to use their professional judgment in matters such as this.

      An argument can made that a health care provider who prescribed Pondimin or Redux to an individual who did not meet the body mass weight indexes or was not "morbidly" obese fell below the standard-of-care in the medical community and exposed the patient to an injury from the diet drugs and, therefore, should be held legally liable for damages to that patient. I am sure different opinions will arise whether this constitutes proximate cause as litigation on these cases progresses. There has been at least one verdict against the doctor involving the diet drugs but the case was commenced several years ago before the current knowledge about these drugs existed.

CAUTION

      Medical malpractice lawsuit are expensive and time consuming for trial lawyers and many states laws impose strict time and procedural requirements, therefore, any individual considering pursuing such a claim should act immediately to get competent legal advice in their state.

      In the litigation that has begun against the diet drug companies, the manufacturers have been "removing" the cases filed in State Court to the Federal Court system where they are then being transferred from the original federal districts to Philadelphia as part of what is known as the Multi District Litigation or MDL. Many trial lawyers believe that this is a disadvantage to their clients and will result in lengthy delays.