Tobacco

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

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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.]

NEXT: Horowitz vs. Berube

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  1. Sometimes shortcuts are necessary when human lives are on the line.

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

    Only if one assumes its purpose is something like assigning fault where fault actually lies and redistributing wealth insofar as doing so can undo or compensate for the harm such fault causes. If, as Banzhaf more likely believes, the system is all about the ability of “private attorneys general” to force social policy through jury awards and, in the process, the redistribution of wealth, then the system is working reasonable well.

  3. In fact, “legal systems” can go take a flying fuck even if just one human life is on the line.

  4. Dan T. impersonator-

    I couldn’t have said it better myself.

  5. The question is how much nagging is needed. To be fair, if I were a smoker and went to a doctor for years who never once mentioned that it was unhealthy or suggested that I quit,that might be malpractice.

    Then again, Banhzaf does do a good job of explaining why it is far too easy to get to full discovery. Its also nice to see a trial lawyer admit he plays on juror emotions rather than the facts or the law. He does forget to mention that using the phrase “greedy insurance ompany lawyers” before a jury is likely to be grounds for a mistrial.

  6. Dan T,

    The human life in question is on the line because its owner knowingly risked it.

  7. “Real” Dan T.,

    That’s the saddest part of all.

  8. “The question is how much nagging is needed. To be fair, if I were a smoker and went to a doctor for years who never once mentioned that it was unhealthy or suggested that I quit,that might be malpractice.”

    Since when is it malpractice to not point out all of the myriad dangerous things in your life that are all too obviously dangerous? To prove said malpractice, wouldn’t one also have to prove that he/she had never read the huge “YOU WILL DIE A HORRIBLE, GRISLY DEATH WITHIN 30 SECONDS IF YOU SMOKE EVEN ONE CIGARETTE!” sur-gen warnings on every single pack, as well as somehow ignored all of the common knowledge about the dangers of smoking that pervades all corners of our culture.

    Since when are doctors responsible for pointing out everything that is dangerous? Much more people die in car accidents than from smoking…so, by this logic, I could hold my doctor responsible if I am in a horrible car accident and he never informed me of the dangers of getting into a car.

    Ugh.

  9. This will make the doctors act as they had when John Edwards sued and won against the OBs. Settling for millions of dollars for malpractice they did not commit had the absolute effect of keeping aspiring doctors from going into obstetrics, having existing doctors refuse to take on high risk cases, increasing the malpractice costs of OBs to about $160,000 a year, generally sending many cases to the public hospitals and reducing access to prenatal care for all.
    In this scenario it; deters doctors from going into primary care, has PCPs refusing to see smokers and generally increases the cost of malpractice insurance for little appreciable reason while denying access to care for at least 20% of Americans.
    Got to hand it to John “Sue the Bastards” Banzhaf for having an impact on our healthcare system.
    By the way malpractice settlements were about 70 billion dollars last year about the same about as it is estimated to insure the remaining uninsured Americans. But I don’t see the Trial lawyers donating any of their 50% share of the procedes to make that happen.

  10. Great just what the healthcare system needs, more malpractice suits. In addition, if this kind of litigation were to take precedence, what would stop doctors from just refusing to treat patients who smoked? That’s the decision I would make if I were an MD facing this situation.

    What’s more, why stop at the doctors. If they can be sued for the actions and responsibilities of others why not everyone else. Why shouldn’t someone be able to sue, say, their ex-wife for not nagging them about it while they were married? Or, why shouldn’t the state sue the best friend for not stepping up to the plate?

    I guess now that everyone knows that tobacco kills, no one can be a victim of ignorance. However people can’t victimize themselves so we have to find a new villain. The solution? Creating criminal doctors for someone else’s decision, or should I say creating a ‘short cut’. Who cares how unjust or intellectually bankrupt it is, or how many untended consequences arise.

  11. 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,’

    He says that like its a good thing.

  12. Sometimes shortcuts are necessary when human lives are on the line.

    That has a certain . . . Stalinist ring to it, no?

  13. Art,

    Good point about Edwards. What people like Dan T don’t ever take into account is that there are unintended consequences to the legal system. Edwards used the “wouldn’t it be worth it to have played it safe and had a C section if just one child might have been saved from this horrible problem (cystic fibrosis if I am not mistaken)”. Of course what is left out was the complete lack of scientific evidence that C sections ever caused the problem and even if they did if the risks to the mother associated with C sections outweighed the risks to the child. No one cared because it was about saving one child. Now, thanks to Edwards and his ilk thousands of woman are needlessly exposed to C sections every year and the rates of cystic fibrosis haven’t budged.

    In this case, all of the money spent lining plaintiff’s lawyers pockets “because even one life is important” could otherwise be spent on medical care. How much of a premium in medical costs do we pay for frivolous med mal suits? That money could have been used to save lives and indirectly this kind of crap costs lives.

  14. Even, please note the key word “might”. I’m saying nothing more than that is a doctor’s job to advise a patient on the effects their choices have on their health. This is particuarly the case when you see the same doctor for regular health care for years. The reason I doubt there is a real concern about lawsuits here is that I can’t imagine a doctor who wouldn’t at least mention the matter to a smoker patient.

    Of course what Banzhaf wants isn’t for doctors to simply make patients aware of the risks. He wants to instill a legal duty to incessantly nag patients. That is the real BS in his argument.

  15. “Of course what Banzhaf wants isn’t for doctors to simply make patients aware of the risks. He wants to instill a legal duty to incessantly nag patients. That is the real BS in his argument.”

    Of course what is the rational course for doctors to take under such a legal regime? Refuse to treat smokers. Why take the legal risk of treating a smoker? In addition, I would imagine med mal rates for doctors who did treat smokers would go up under such a rule. Basically, Banzhaf wants to deprive smokers of healthcare.

  16. How is saving human lives “Stalinist?” Isn’t that why we have a legal system to begin with? To protect lives? In instances where that system fails to protect people, we as a society have an obligation to do what is morally necessary.

  17. The funny thing is that he argues against his desired goal. Under the “small-print warning” argument he invokes, a doctor could meet their obligation by simply making a passing reference or maybe even having a sign in their office warning about smoking.

  18. “How is saving human lives “Stalinist?” Isn’t that why we have a legal system to begin with? To protect lives? In instances where that system fails to protect people, we as a society have an obligation to do what is morally necessary.”

    But it is not that simple. See the Edwards example above. You think are saving lives by getting doctors to nag their patients but you are actually killing people through the second and third order effects of the rule. We can’t kindergarten logic run the legal system.

  19. They think you should be able to sue because your doctor didn’t nag you about (not) smoking? I can just imagine doctor visits 20 years from now.

    “Now, remember, Fred, do not smoke. Do not eat foods with trans fats. Do not eat artificial colorings or flavorings. Do not drink to excess. Obey speed limits, and drive defensively. Wear eye protection when using power tools. Watch out for snakes. Keep small objects out of the reach of children. Do not taunt the octopus. Plastic bags are not a toy. Do not eat more than one fish from the Hudson River per month, and none if you are pregnant, may become pregnant, or are a small child. Do not run with scissors…
    (five hours later)
    “…and #2 pencils may contain chemicals known to the state of California to cause reproductive harm. Please sign here to indicate your acknowledgement that I’ve told you all these things; this is for my protection, not yours.”

  20. Hmmm… how do we know if the “real” Dan T. is really the real Dan T. What if, in fact, both are impostors? What if, in fact, there is no real Dan T., that Dan T. is, himself, an impostor? Can one really be considered to be impersonating someone who is, himself, a non-person? And what if I am not really writing this now? What if someone else, maybe even Dan T. (or the person posing as Dan T. or the person imitating the person posing as Dan T.) is writing it?

    This is all very confusing, hence stressful. It may adversely affect my health. Reason didn’t warn me I might be responding to comments from people who didn’t exist or, worse yet, comments from people imitating people who didn’t exist. I may not be able to afford the increased medical expenses, not to mention the pain and suffering. Does anyone know a good trial lawyer somewhere in the vicinity of George Washington University I might go see about this?

  21. D.A. Ridgely,

    This is what I’m talking about. A torts system adapted to counter these types of threats to human lives is moral.

  22. Much more people die in car accidents than from smoking

    You can’t be serious. I believe the # of car accident deaths is somewhere around 30,000 per annum while the number of people whose deaths were precipitated by smoking is well over ten times that. Of course, dying in a car crash is far more grisly and dramatic, but it’s extremely disingenuous to suggest that with tens of millions of heavy smokers “much” fewer people die of smoking than in car wrecks.

    By the way, it’s many more not much more.

  23. You can’t be serious. I believe the # of car accident deaths is somewhere around 30,000 per annum while the number of people whose deaths were precipitated by smoking is well over ten times that.

    andy,

    Would those smokers have been immortal if not for smoking?

  24. Here’s one that’ll make them squirm…could a doctor be sued if he denied snuff was safer than smokimg and the patient stuck with smoking?

  25. John:
    You are right about the increase in C-section rates. For many years health care providers tried to decrease C-section rates and had gotten them to around 15-20%. Why because a C-section is major abdominal surgery that has all of the inherent risks(and expense) of surgery with a longer recovery time. Since John “I can hear the baby talking to me from the womb” Edwards successfully raped the OBs, the C-section rates are now up to 30%.
    This is the disgrace of the trial lawyers.
    Without going into major detail, it is a well known fact in healthcare that doctors are sued and juries award the largest damages not based on actual negligence or malpractice but on emotions and injury ragardless of the cause(John B is right about that).

  26. Yeah Art,

    It is great to know that doctors are out there mulilating women because John Edwards told them it was for the children. If there is a hell, that smarmy little bastard is going there.

  27. Would those smokers have been immortal if not for smoking?

    Maybe. In order to be immortal, one must not smoke, eat properly, exercise regularly and always obey the government. If people would only do these things, they would not only live forever, they would all be happy and prosperous, there would be peace on earth and every child would get a pony for Christmas Winter Holiday.

  28. andy,

    Dying in a car crash usually can be determined to be the very definite cause of death. Smoking, however, may be linked any myriad of deaths caused by heart attack, emphazema, cancers of many sorts, all of which have more complicated causes than blunt force trauma does, so 10 times is not exactly an honest number.

    You have to wonder how long its going to take before trial lawyers end up overstepping and malpractice suits are taken away from the traditional court room and given to professional medical boards. It will happen, I guarantee you. People can only stand so much economic pain lining the pockets of lawyers to meet their medical needs.

  29. Dan T.

    “A torts system adapted to counter these types of threats to human lives is moral.”

    No it is not.

    ‘These types of threats’ are ones posed by the individual themselves. The very area of existance in which no government has moral authority over.

  30. if I were a smoker and went to a doctor for years who never once mentioned that it was unhealthy or suggested that I quit, that might be malpractice.

    Banal regurgitations of the obvious are not what I and my insurance company are paying a highly-trained and expensive physician for. If I am hacking up a gallon of lung butter every morning or cannot see my dick without a periscope I don’t need to pay a doctor to remind me that I have an unhealthy lifestyle. I am lucky if I get 5 minutes a year with him, I would rather he spent this limited time telling me something I don’t know.

  31. David,

    You obviously missed my point. Of course, everyone dies, smoker or not. But smoking expedites that process, and it’s intellectually dishonest to deny that.

  32. Andy,

    Lost In Translation beat me to it. The “smoking-related deaths” stats (that are typically compiled by anti-smoking groups, FWIW) are akin to the “alcohol-related auto accident” stat gathering techniques. If someone has had one beer and a pedestrian jumps out in front of their car and they hit the person, then it’s considered an “alcohol-related accident”. Such weak causative relation is completely lost when you compile these individual cases into an aggregate statistic. Auto crash deaths stats, on the other hand, are much more direct and objectively quantifiable. If they die from the crash or from complications from injuries sustained in the crash, then they are considered an auto-related death. On the other hand, it’s very difficult to determine whether someone who smokes and dies from a heart attack would have had that heart attack had he/she not been a smoker. Thus, to simplify the whole process and boil it down to a pill that is easy to swollow (and beneficial to the anti-smoking movement’s cause), they just lump it all together.

  33. Lost in Translation,

    Cut the shit. When smokers have 10,20,50 times the likelihood of contracting emphezema, lung cancer, etc. don’t give me that “it’s hard to establish the connection.”

  34. Andy,

    Driving in a car expedites that process as well. Drinking alcohol expedites that process. Mountain climbing does. Deep-sea ice fishing does. Lumberjacking does. Eating hamburgers does.

    There are thousands of things that “expedite death”, either persistently through continued health effects, or statistically, through increased risk of a single catastrophic accident. Of course, we could all sit in our bomb shelters and eat only the best food for us and exercise every day and never do anything dangerous…but why?

    Nobody is “denying that smoking expedites death”. That much has been proven. It’s just that it’s not alone, not by a long shot.

  35. Andy, Are you simply stupid, or do you have any source to back ypour assertions “When smokers have 10,20,50 times the likelihood of contracting emphezema, lung cancer, etc. ”
    What have you been smoking?

  36. I participate in the highest risk sport – horseback riding. There are more injuries per capita for riders than for the participants in any other sport. [What do you expect when you hang around a 1,000 lb animal with no brains and a hyperactive flight response?]

    By Banzhaf’s line of reasoning I should be able to sue my riding instructor for not warning me of the danger every time I have a lesson. Probably I should sue my doctor, too, since he knows I ride.

    The unfortunate part is that the tort lawyers have already caused a major increase in the cost of the sport because, every time a kid is injured, some ambulance chaser tries to convince them to sue everyone in sight, despite the known risks of the sport.

  37. No, there is no life on the line in such proceedings, only money.

    If I were sued as such a doctor, I’d just lie and say I did nag the patient. Nagging is not the sort of thing that’d be recorded in medical records, so it’s just my word now against the patient’s. The jury would of course believe me, because if they’re so convinced that’s the right thing for a doctor to do, then they’d tend to believe that’s the sort of thing doctors do, and they’ll disbelieve the patient who said the doctor didn’t.

  38. Al from AL

    http://www.bmj.com/cgi/content/full/328/7455/1519

    Here’s your link, you smug-ass cocksmack. Pardon me for my “rudeness,” but people like you make libertarians (safe to say you are, I’ve never heard a non-libertarian make the absurd pro-smoking claims that are made here) look bad.

  39. That last sentence should have read:

    “some ambulance chaser tries to convince the parents to sue everyone in sight, despite the known risks of the sport.”

  40. Malpractice seems to have no place in this issue.

    John

    “It is great to know that doctors are out there mulilating women because John Edwards told them it was for the children.”

    Mutilating? Kinda like you do with the art of discourse?

  41. Robert

    I wish you were right.

    Unfortunately, the “you” in this case is the RICH DOCTOR, and the POOR SUFFERING PLAINTIFF is a HAPLESS VICTIM of your SHAMEFULL NEGLECT so you could get away to your golf game. And if you were so meticulous, WHY DIDN’T YOU PUT A NOTE IN YOUR PATIENT’S FILE?

    At least that’s the way it would be presented in court.

  42. I can’t imagine a doctor who wouldn’t at least mention the matter to a smoker patient.

  43. I can’t imagine a doctor who wouldn’t at least mention the matter to a smoker patient.

    Which just shows what a fake issue this is. Have any smokers been to doctor’s appointments where the doctor didn’t mention that it might be a good idea to give up the sticks? I know my doctor hectors me to reduce my drinking every freaking visit.

    Edwards successfully raped the OBs, the C-section rates are now up to 30%.

    I think you have a pretty shaky cause/effect relationship there–C-section rates are up for a lot of reasons, and whether that’s a bad thing or not is a matter of some debate.

  44. “It is great to know that doctors are out there mulilating women because John Edwards told them it was for the children.”

    Mutilating? Kinda like you do with the art of discourse?

    I would say giving uneccessary major abdominal surgury would count as mutilation in some sense of the term.

    Brian 24.

    Fear of lawsuit isn’t the only reason C sections now account foo 29% of all births but it is a major reason.

    http://www.childbirthconnection.org/article.asp?ck=10285

    “Obstetricians say that fear of malpractice suits pushes them to do C-sections more frequently than even they consider necessary. Putting so many mothers through surgery is hardly cause for celebration. But our deep-seated desire to limit risk to babies is the biggest force behind its prevalence; it is the price exacted by the reliability we aspire to.”

    http://www.newyorker.com/printables/fact/061009fa_fact

    The New Yorker article is interesting. Basically the health and well being of the mother is too often forgotten in modern obstetrics.

  45. How is saving human lives “Stalinist?”

    It was more the “ends justifies the means” tone of your statement that struck me as Stalinist, the willingness to trash bourgeois notions of duty, responsibility, and due process in pursuit of an authoritarian end.

    All in the name of social justice, or saving lives, or whatever the twaddle is that is supposed to disguise the grab for power.

  46. And remember, kids, no matter how old a smoker is when they die, or how long its been since they smoked, it is counted as a “smoking-related” death.

  47. John,

    You are of course right. I should never have accused you of hyperbole. Thanks for showing me how you were using the most reasonable word choice to describe the results of a medical choice made by a patient in consultation with their doctor.

  48. My doctor got through my entire last checkup without once telling me not to drive a railroad spike into my thigh with a hammer.

    Needless to say, it’s really hard to walk now.

    I’m still looking for a new doctor who isn’t such a malpracticing quack. Someone who can save me from myself.

  49. Which just shows what a fake issue this is. Have any smokers been to doctor’s appointments where the doctor didn’t mention that it might be a good idea to give up the sticks?

    THat’s absolutely right. THere are no doctors that wouldn’t mention that smoking is bad and you should quit.

    But it seems to these people mentioning isn’t enough. They seems to believe that if only the doctors nagged and harrassed things would change. How silly.

    When I used to smoke, my doctor would always tell me to quit and I would say “yeah I know” and keep smoking. If he turned into a harassing nag about it I would just stop visiting that doctor…and if all doctors had to do it, I would merely be less likely to visit a doctor unless there was something urgent and skip checkups and the like. I’ll be damned if Im gonna be paying someone to nag me against my will. How’s that for unintended consequnces

  50. Thanks for showing me how you were using the most reasonable word choice to describe the results of a medical choice made by a patient in consultation with their doctor.

    And the doctor’s insurance company and lawyer. You fogot to mention their presence and they are there primarily because of John Edwards. But of course Edwards is a Democrat crusading for the children, so how could he possibly do anything wrong?

  51. And then there’s always the interesting experience of having a doctor who smokes telling you to quit. Or a fat doctor telling you to lose weight.

  52. John,

    Like I said before… to sue for malpractice due to a dr. not mentioning the dangers of smoking is abuse of the concept of malpractice.

    However, I find it interesting that you cite the lack of evidence for a better outcome with C-sections in your argument that lawyers are distorting medical practice thru lawsuits.

    Seems to me, one of the main driving forces behind the evidence-based medical practice movement was the fact that when doctors wound up in court, they found they had no evidence-base to support their medical decisions. The need to defend medical practice in court has resulted in a change in the medical paradigm that can only be described as positive. Evidence-based medicine has a long way to go before it covers all areas of medical practice, but the drive towards the use of best evidence (a good thing) is driven by the very malpractice lawsuits that you are Art are complaining against.

    Is there abuse of malpractice law motivated by money grubbing lawyers? Yep. But if you stop there, you over simplify the issue and what should be done about it.

    Are you advocating restrictions on malpractice lawyers/ tort awards of some kind? Seems that the unintended consequences of that has as much potential for harm as the alternative.

  53. Andy,

    Nowhere in the Doll study you cite indicates a 10, 30, 0r 50 time the likelihood of contracting cancer etc. Spend a few years researching the matter before you haul out an old discredited epidemiological (non-scientific) study. Start here; http://www.forces.org/

  54. Dan T.,

    I think we would work well together. Please send me a resume.

  55. AlfromAlberta,

    “epidemiological (non-scientific) study”

    Epi studies are the only way to determine certain kinds of questions. They are scientific. What is your beef?

    http://trc.ucdavis.edu/TRC/freshSem/sp05/Kass.html

    re: forces.org

    You might try expanding your reading. More than a small bit of bias on that website. I doubt you are getting the complete story.

  56. Every doctor I’ve ever been to has at least given me a 1-10 minute lecture on the dangers of smoking, and usually the doctor gives me a 14 pound packet of information on how, why, when, where to quit. The nagging gets to the point that I ahve 2 choices…lie about being a smoker or go chainsmoke three cigarettes immediately upon exiting the office to deal with the irritation I had just undergone…I’m pretty sure that’s something like 21 minutes off of my life. Can I sue for that?

  57. *have 2 choices

  58. Alice, I would very much enjoy working under you. I readily submit to petty authority. It’s usually my own good you know.

  59. We can’t kindergarten logic run the legal system.

    There’s a slippery slope between “Think of the children” and “Think like the children”.

  60. Seriously though, my doctor must be aware of this stuff already. He routinely bugs me about

    — smoking
    — not wearing seat belts
    — unprotected sex
    — working in loud noise areas without ear protection,

    even though I do none of these things, and have said as much. Maybe he’s afraid that I’m lying and will sue him after I become a deaf, HIV-positive car accident victim with emphysema.

  61. When lay persons like most of us reading this board sling around mortality statistics, we frequently ignore an important point. When catastrophic injuries due to vehicle accidents, falls, shootings, etc. lead to the deaths of young people, most of their expected lifespans are wiped out. A 16-year-old who wraps his car around a lightpole and an octogenarian who contracts a fatal cancer both count as one death, but the youngster loses much more than the old man does. If AIDS were like pneumonia, and rarely killed anyone but the elderly, would it be seen as such a scourge? Don’t we feel that terminal disease in a child is a worse outcome than Grandpa taking sick after a long life?

    Tobacco-related diseases suck, and when someone in the prime of life dies of one “before his time” that is tragic, but in many cases they merely shorten lifespan by a small percentage. I say this without wanting to minimize the pain and suffering that older victims endure. I’m sure it would be better to not smoke, live five years longer, and die of something less gruesome.* But given the improvements in long-term care for elders, isn’t “going quietly in his sleep” on the downtrend for our seniors?

    Kevin

    * But that’s just my opinion. I’ve never taken up cigarettes or smokeless `backy, and only dabbled in cigar and pipe smoking in my younger days. YMMV.

  62. I wonder if John Banzhaf realizes how strange it is to conceive of a world where no one is responsible for his own bad choice, but everyone is responsible for other’s bad choices?

  63. If it came to that, I could always fake the date on a note in the patient’s file, and nobody would know the difference.

  64. “Is there abuse of malpractice law motivated by money grubbing lawyers? Yep. But if you stop there, you over simplify the issue and what should be done about it.”

    In priciple I would agree. The problem is that courts do not apply a rigorous enough test to determine what is appropriate expert testimony and what is valid science relevent to the proceeding. The science behind the sistic fybrosis was just plain wrong. There wasn’t any legitimate evidence. Those cases were won on the basis of lousy science and emotional appeals to the juries. The sollution is to have much stricter standards on the admission of scientific evidence and expert testimony combined with an understanding that sometimes bad things happen that are not due to someone’s negligence.

  65. John

    I agree. I know I get over-the-top on the subject of tort lawyers, but we need to distinguish between cases where there is genuine negligence – such as my friend whose doctor failed to detect a broken hip – and a poor result from following the best practice available – such as a death in known high-risk surgery.

  66. I can’t read the extorting drek that sack of shit in a suit wrote without wanting to do something very violent to him. Can I sue him for damages from my high blood pressure I got from reading his conspiratorial plottings?

    All the charm and grace of a snuff film rolled into one lawyer. What a guy!

  67. Banzhaf is 100% correct. Yes, we should all be very, very afraid because of it.

  68. Isaac,

    My wife once worked for a GP who weighed well over 3 bills and whose standard lunch time procedure was to flip his tie over his shoulder and chow 2 Double Whoppers while leaning over a trashcan to catch the fallout. His practice was in a blue-collar area and, needless to say, he badgered his patients about smoking relentlessly. Most of the time when he left the room the patients would commiserate with my wife about what a jackass he was, but there were a few who told him directly to his face to pound sand.

  69. Can anyone admit that for some – especially low income people – the pleasure they recieve from smoking is worth the shorter life?

    – Rick

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