By Robert Whitaker
August 13, 2022
Source: Mad in America
Photo / Image Source: Unsplash,
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The Legal Standard for Medical Fraud
In the wake of World War II, the discovery of Nazi medical experiments on Jewish prisoners and the mentally ill led to the principle, codified in law in the United States, of the duty to provide volunteers in research studies with informed consent. Potential study subjects need to be informed about the risks of a study before they can give consent.
In the 1950s and 1960s, this principle of informed consent was extended to ordinary medical care. The principle is grounded in the concept of personal autonomy: the individual has a right to self-determination. A 1972 landmark case in federal court, Canterbury v. Spence, ruled that providing patients with informed consent was not just an ethical obligation, but a legal one. The court wrote:
“The patient’s right of self-decision shapes the boundaries of the duty to reveal. That right can be exercised only if the patient possesses enough information to enable an intelligent choice.”
The court also set forth a standard for assessing whether this legal obligation had been met: “What would a reasonable patient want to know with respect to the proposed therapy and the dangers that may be inherently or potentially involved?”
While it is the physician or medical caregiver who is required to obtain the informed consent of the patient, this legal standard clearly imposes an ethical duty, by proxy, on the medical specialty that provides individual physicians with the information that should be disclosed. The medical specialty must provide physicians with the best possible accounting of the risks and benefits of any proposed therapy, and in its communications to the public, do the same.
The diagnosis of a disease is obviously a first step in obtaining informed consent. What is the illness that needs to be treated? If the presenting symptoms do not lead to a diagnosis with a known pathology, that is okay—the absence of knowledge helps inform the patient’s decision-making. If it isn’t understood why a drug works, that is okay too. Once again, the absence of knowledge helps inform the patient’s decision-making. At that point, the patient can focus on the risks and benefits of the proposed treatment: what have clinical studies shown?
The chemical imbalance story violated those principles at every step. Patients were informed that they had a known pathology, and that an antidepressant fixed that pathology.
That was a story of an antidote to a disease, and thus was a medically necessary treatment. If a patient didn’t take the antidepressant, he or she could expect to continue to suffer from depression.
This isn’t simply a failure to give patients the information needed to make an “informed choice.” Instead, from a legal standpoint, this is a case of a patient being told a lie.
Here is how one Arizona law firm describes the legal consequences for a doctor that lies to a patient:
“You can sue your doctor for lying, provided certain breaches of duty of care occur. A doctor’s duty of care is to be truthful about your diagnosis, treatment options, and prognosis. If a doctor has lied about any of this information, it could be proof of a medical malpractice claim. The law considers it medical negligence if a doctor fails to provide the truth for informed consent, which may also bring a battery lawsuit.”
Medical malpractice is the charge if the action was due to negligence; medical battery requires the action to be intentional. Here is how a Washington D.C. law firm describes medical battery:
“When you visit a doctor and they prescribe a treatment or procedure, an essential element is your consent. You have the right to know what will be done to you, to learn the risk or potential side effects of a procedure, and to be informed of any alternative treatment options available to you . . . Medical battery occurs when the doctor or other medical professional violates your right to decide what kinds of medical treatments you will receive and which you do not wish to receive.”
The FDA, of course, approved the prescribing of antidepressants for depression. And it may be that many individual prescribers who told their patients that antidepressants fixed a chemical imbalance thought that was true. They believed they were providing patients with “informed consent.”
As such, in this instance of the chemical-imbalance story, the medical malpractice and battery can be understood as not necessarily originating in the doctor-patient interaction, but rather in the telling of a false story to the public by the American Psychiatric Association (APA) and pharmaceutical companies that knowingly promoted this falsehood. The academic psychiatrists that served on the scientific advisory boards of non-profit advocacy organizations that peddled this story share in this collective guilt.
How can such practices impact your health? Why? What is your experience?
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