Abstract
Among the many explanations for antibiotic overprescription, some doctors cite the risk of malpractice liability if they deny a patient's request for an antibiotic and the patient's condition worsens. In this paper, I examine the merits of this concern—i.e., whether physicians could, in fact, face malpractice liability for refusing to prescribe an antibiotic when, from a public health perspective, the use of the antibiotic would be considered inappropriate. I conclude that the potential for liability cannot be dismissed entirely, but the risk is remote—even in cases where there is a chance that the antibiotic might have benefited the patient.
Notes
As Barry Furrow explains, “If a defendant has established that distinctive practices are supported by a minority within the professional group, the judge may direct a verdict for the defendant rather than leaving the issue to the jury.” Barry R. Furrow. 1997. Managed care organizations and patient injury: Rethinking liability. Georgia Law Review 31: 419-509, at 486 n.300.
Indeed, “there are no documented cases in the medical literature of a physician being sued for failing to prescribe an antibiotic and a board member of a malpractice insurer reported that he was unaware of such cases” (Howard, 76).
As one commentator has observed, “It is as presumptuous and ethically inappropriate for doctors to suppose that their professional expertise qualifies them to know what kind of life is worth prolonging as it would be for meteorologists to suppose their professional expertise qualifies them to know what kind of destination is worth a long drive in the rain” (Ackerman 1991, 27–28 cited in Pope, 41).
These monitoring programs have been criticized for over-deterring the legitimate use of controlled substances. However, under-prescribing does not appear to be a significant problem in the area of antibiotics (as it is with controlled substances), so the risk of over-deterrence is a much less significant concern.
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Coleman, C.H. Do Physicians’ Legal Duties to Patients Conflict with Public Health Values? The Case of Antibiotic Overprescription. Bioethical Inquiry 6, 181–185 (2009). https://doi.org/10.1007/s11673-009-9155-4
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DOI: https://doi.org/10.1007/s11673-009-9155-4