Should Your Doctor Be Taking “Smart Drugs” And Other Medical Malpractice Hypotheticals

smart drugs.jpgIn this week’s news were a couple of stories that I thought made neat medical malpractice hypotheticals.
The first comes from a new research study showing that doctors who take so-called “smart drugs” (drugs that improve focus and concentration like ADHD drugs and anti-narcoleptic drug Modafinil) perform better than doctors who don’t. The study prompted Instapundit’s Glenn Reynolds to ask, “If ‘smart drugs’ improve doctors’ performance, is it malpractice not to take them?” The answer is “Certainly not,” for reasons explained in this earlier blog post of mine. But perhaps medical malpractice law should move in the direction of sanctioning sleep-deprived doctors, as I argued in this post.
The week’s other interesting (to me at least) med mal hypothetical comes to us courtesy of Spencer v. Roche, a case decided this week by the First Circuit Court of Appeals. Spencer was a case in which the plaintiff sued for alleged violations of his right to be free from unreasonable search and seizure under both the US Constitution and Massachusetts Declaration of Rights. In 2005, the Plaintiff, Spencer, was stopped by police for driving without a license. Upon learning from a confidential informant (CI) that Spencer had supposedly placed a bag of cocaine into his rectum a short time before, police arrested Spencer and obtained a search warrant to search his anal cavity.
Police then transported Spencer to Saint Vincent’s hospital, where a doctor took a KUB x-ray of Spencer’s anal cavity and stomach area against Spencer’s will and apparently while Spencer was handcuffed. Lo and behold, the ultra-reliable criminal snitch was wrong and no drugs were found on Spencer. He was released and sued under 42 USC 1983 and the Massachusetts Civil Rights Act for violations of his Fourth Amendment and Article XIV rights to be free from unreasonable search and seizure. This week, the First Circuit Court of Appeals ruled against Spencer, holding that the search was reasonable under the federal and Massachusetts constitutions.
The Spencer case raises the question of whether any medical malpractice claims would have succeeded. One element of a medical malpractice case is the existence of a doctor-patient relationship and, while that element would be problematic here, let’s assume for the moment we pass that threshold. At that point, issues of informed consent would come into play.
A couple of years ago, American Medical News reported on a medical malpractice lawsuit against a Texas surgeon who performed surgery on a patient, evidently against his will, in order to recover a bullet that implicated the patient in the commission of a crime. As the article noted, “According to American Medical Association policy, physicians should honor informed consent policy, both in ethics and law, “unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent.” The article suggested that the doctor might rely on Rule E-2.065 of the American Medical Association’s ethical guidelines, which pertains to “Court-Initiated Medical Treatments In Criminal Cases.” But it seems plain, from reading the rule, that it is meant to apply in cases where, for example, the court orders forceful medication of a mentally ill criminal.
British medical ethics are much clearer. It seems clear under the British Medical Association’s guidelines for “Intimate Body Searches,” which state that, “no medical practitioner should take part in an intimate body search of a subject without that subject’s consent.”
Overall, a week’s worth of interesting tort news.

This blog is maintained by the Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C.