Evidence, Schmevidence, Says the Ralph Nader of the Tobacco Industry

An article in the journal Tobacco Control suggests suing doctors for failing to nag patients who smoke about quitting. Noting that the U.S. Public Health Service has issued "Treating Tobacco Use and Dependence Clinical Practice Guidelines" that recommend informing patients about the health risks of smoking and steering them toward "effective and inexpensive treatments for nicotine addiction," the authors argue that doctors who don't comply with these guidelines could successfully be sued for malpractice.

Maverick anti-smoking activist Michael Siegel questions the idea, noting the difficulty of proving "a causal relationship between the breach of duty and the incurred injury." A plaintiff would have to show that 1) he would have tried to quit if his doctor had urged him to do so, 2) his attempt to quit would have been successful, and 3) if only he had quit at that point, he would not have developed, say, lung cancer. In response, John Banzhaf,  president of Action on Smoking and Health, says Siegel is "out of his depth." The relentlessly self-promoting Banzhaf generously offers his expertise "as someone with almost 40 years of experience with anti-tobacco litigation…who has been called the 'Ralph Nader of the Tobacco Industry,' an 'Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer,' 'a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,' and 'The Law Professor Who Masterminded Litigation Against the Tobacco Industry.'" By contrast, Siegel is merely a physician and a professor of public health, so he does not realize that litigation can be successful even if you don't have a case. Banzhaf explains:

To survive the initial motion to dismiss—where the defendant asks the court to throw out the law suit so that defendant (and his insurance company) will not be put to the burden of defending it—the judge must assumes all allegations in the legal complaint are true unless they are clearly impossible on their face. Thus a judge would refuse to dismiss any law suit which alleged that the plaintiff would have quit if the physician had warned him to do so, even if such a proposition were clearly against the great weight of evidence. This refusal to grant the motion opens the door to pre-trial discovery – including depositions, demands for the physician's time, documents, and records, etc.—places a blot on his record, and perhaps interferes with his ability to obtain malpractice coverage at favorable rates. That threat alone may motivate many physicians (and their medical organizations and insurance companies) to settle…

In most jurisdictions, a judge will charge the jury that there is a legal presumption that the plaintiff would have heeded a warning, and this jury charge is usually given even regarding small-print routine warnings on tools, drugs, etc. which were merely inadequate rather than nonexistent. This presumption – which in effect shifts the burden on this issue onto the defendant – is likely to be far stronger where the specific face-to-face warning from a physician mandated by the guidelines was not even given, since judges as well as jurors know that warnings from authority figures in white coats are likely to be far more effective that tiny-print warnings on jars or packages. The presumption and jury charge, by the way, is generally given even if the defendant introduces strong empirical evidence that the plaintiff would not have heeded the warning….

The question of whether the plaintiff would have heeded the advice and assistance of the physician if he or she had given it is a factual issue for the jury to decide, and the issue must be left to them if reasonably people could possibly differ – as they obviously can on this question. Experience clearly suggests that, faced with a sympathetic and very ill plaintiff who swears that he would have heeded a warning if it had been given, and a physician who (as his lawyer will argue) "thumbed his nose at his professional obligation, ignored the simple guidelines of a governmental commission and the unanimous advice of his peers," the jury's sympathy for the plaintiff will incline them to award him some damages, even if empirical evidence as well as common experience suggests how hard it often is to quit….

The same is true with regard to the burden on the plaintiff to prove that, had he quit, he would not have had the medical problem of which he now complains. Sympathy may well be more important in a jury's consideration of this issue than dry empirical and statistical evidence and related arguments put forth by "rich doctors and their greedy insurance company lawyers." Moreover, since juries are so firmly convinced that smoking causes lung cancer, arguments about latency periods – and just when the first cell turned from healthy to pre-cancerous and then to cancerous—are not likely to be very persuasive. Plaintiff attorneys may also try to sue in situations based upon other diseases and medical problems triggered and/or exacerbated by smoking—e.g., heart attacks—where arguments based upon early damage and long latency periods will have less traction.

Banzhaf does not seem to realize that in vindicating this legal strategy he is indicting the civil justice system. 

[Thanks to Linda Stewart for the tip.]