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.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
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.
References
Ackerman, F. 1991. The significance of a wish. Hastings Ctr. Rep 21: 27–30. doi:10.2307/3562998.
Brushwood, D.B. 2003. Maximizing the value of electronic prescription monitoring programs. The Journal of Law, Medicine & Ethics 31: 41–54. doi:10.1111/j.1748-720X.2003.tb00058.x.
Canterbury v. Spence, 150 U.S. App. D.C. 263, 464 F.2d 772 (D.C. Cir. 1972).
Coleman, C.H. 2005. Duties to subjects in clinical research. Vanderbilt Law Review 58: 387–449.
Department of Health and Human Services.2005. Part 46: Protection of Human Subjects. http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.htm. Accessed 4 April 2009.
Furrow, B.R. 1997. Managed care organizations and patient injury: Rethinking liability. Georgia Law Review (Athens, Ga.) 31: 419–509.
Gonzales, R., et al. 2001. Principles of appropriate antibiotic use for treatment of acute respiratory tract infections in adults: Background, specific aims, and methods. Annals of Internal Medicine 134: 479–486.
Howard, D. 2007. Patient and physician demand for antibiotics. In Extending the Cure: Policy responses to the growing threat of antibiotic resistance, ed. Laxminarayan Ramanan, and Malani Anup. Washington: RFF Press.
Laxminarayan, R., and Malani, A. (Eds.). 2007. Extending the Cure: Policy responses to the growing threat of antibiotic resistance. Washington: RFF Press.
Meier, B. (2008). Study finds few pain doctors face criminal prosecutions. The New York Times, 20 September, A16.
Peters, P.G. 2000. The quiet demise of deference to custom: Malpractice law at the millennium. Washington and Lee Law Review 57: 163–205.
Pope, T.M. 2007. Medical futility statutes: No safe harbor to unilaterally refuse life-sustaining treatment. Tennessee Law Review 75: 1–80.
Rodwin, M.A. 1995. Strains in the fiduciary metaphor: Divided physician loyalties and obligations in a changing health care system. American Journal of Law & Medicine 21: 241–257.
Selgelid, M.J. 2007. Ethics and drug resistance. Bioethics 21(4): 218–229. doi:10.1111/j.1467-8519.2006.00542.x.
Solomon, D.H., et al. 2001. Academic detailing to improve use of broad-spectrum antibiotics at an academic medical center. Archives of Internal Medicine 161: 1897–1902. doi:10.1001/archinte.161.15.1897.
Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334 (1976).
Ziegler, S.J., and N.P. Lorich Jr. 2003. Pain relief, prescription drugs, and prosecution: A four-state survey of chief prosecutors. The Journal of Law, Medicine & Ethics 31: 75–100. doi:10.1111/j.1748-720X.2003.tb00060.x.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
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
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11673-009-9155-4