There are doctors who give medical advice on television. You can see them on ads, news shows and you can also see them on entertainment shows especially on those shows that want to capitalize on having a medical segment that further attracts the very crowd already watching. I won’t mention the shows but they’re pretty much known. Have you ever wondered how these doctors are selected to be on these shows? Have you ever wondered if they are experienced or trained in the fields they discuss for you? Perhaps, many people haven’t wondered because they think that since the doctor is on TV the doctor must be good. Perhaps you might believe that such a doctor is above the crowd and incapable of medical malpractice? In this article, I am wondering if these doctors should be held accountable to you if they give wrong advice.
Let me begin by explaining how the Law comes to deal with doctors, patients and medical malpractice. The core, cardinal rule with respect to a doctor being accountable to a patient is that there is first established what is known in the law as a doctor - patient relationship. This is a strict and formal requirement of the Law that must be met before anyone will be allowed to use the court system to sue a doctor. If and when there exists a doctor - patient relationship then the doctor has a duty or an obligation to the patient to provide medical care within the applicable standard of care (that level of care that a reasonable physician in that field would apply in like or similar circumstances). Where a physician does not provide care up to that standard, whether that be in diagnosis or treatment or just advice, then the doctor is said to have deviated from the standard of care.
The Law further provides that before a doctor can be sued in court it must be the case that the doctor not only had a duty and violated that duty but also that the violation of the duty caused a harm to the patient. For example, if a doctor prescribes the wrong medication for you or the wrong dose of the right medication and the patient takes the medicine and gets sicker then all of the elements required to sue are clearly present.
If, on the other hand, the doctor prescribes the wrong medications and when the patient opens the bottle all of the pills fall in the sewer then there has been no harm to the patient and no lawsuit will be allowed for that wrong prescription.
This concept is analogous to a motorist going through a red light. If no one is hit by the offender then no one can sue the offender. Now that doesn’t mean the offender can’t get a ticket. That’s a different situation and of course a ticket can be issued for the illegal conduct. The same is true for a doctor in the sense that even if by some stroke of luck harm is not inflicted upon the patient the doctor can still be punished by the State Medical Board for the improper conduct. The patient always has the right to contact the Medical Board to lodge such a complaint. Clearly, the State doesn’t want an improperly trained doctor loose where perhaps the next time real damage is done!
This brings us back then to whether a TV doctor giving advice or supporting a service or a product in an ad can be held to have established a doctor - patient relationship. The state of the Law currently is that such behavior by a doctor does not establish such a relationship because it isn’t personal enough, services aren’t being paid for and the recipient of the advice should know better that the doctor on TV is just an entertainer.
I wonder though if in the internet, social media age we should continue this line of thinking. Is this a false legal construct to say that no relationship is formed and no money is changing hands? And if a doctor-patient relationship can be formed by tele-medicine practice why should the Law cling to perhaps outdated principles here? The very reason a certain doctor is selected to entertain you is because that doctor comes off trustworthy and has an ability to bond with words. Why is this not a doctor-patient relationship thus far then? Can the Law be saying that a doctor who treats people one at a time must be more accountable than a doctor who advises millions at a time? After all, which one of these doctors is capable of causing much, much more damage?
Further, how can it be said that money is not changing hands. Is it not true that many people pay for their cable TV and for the products being advertised. Is it also not true that the doctor is being paid from those very pots of money? So, is the Law saying here that if the patient doesn’t directly pay the doctor but rather indirectly does so that this ends up being no payment at all?
Perhaps we all have a different way of looking at this but perhaps you’ve wondered why the doctor gets a medical malpractice Get Out of Jail Free card under these circumstances where the doctor can apparently say and do whatever, get paid for it and not be accountable when because of the trust put into the advice someone gets injured. After all, we all know that a doctor is used in these roles to garner trust and get more people to buy more things. So, if they get the good why don’t they also get the bad? Why is it tails they win and heads you loose? Food for thought.