Pediatricians Can Be Sued Under New Obesity Guidelines; They Set Legal Standard For Reasonable Care Of Overweight Children
Pediatricians Can Be Sued
WASHINGTON, D.C. (February 23, 2023) – New medical guidelines for treating young patients who are fat could provide the basis for lawsuits against pediatricians who do not follow them, especially if they do not refer overweight and obese children to “intensive health behavior and lifestyle treatment” as the guidelines require, says public interest law professor John Banzhaf, who started the fat lawsuit movement which has already had more than a dozen successes.
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He has also been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," a "King of Class Action Lawsuits," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."
The official "Clinical Practice Guideline for the Evaluation and Treatment of Children and Adolescents With Obesity," issued by the American Academy of Pediatrics [APA], provide that "Pediatricians... should provide or refer children 6y and older...
With overweight (BMI ≥85th percentile to <95th percentile) and obesity (BMI ≥95th percentile) to intensive health behavior and lifestyle treatment... the most effective treatment includes 26 or more hours of face-to-face, family-based, multicomponent treatment over a 3- to 12-mo period."
So pediatricians could be the next major target of so-called fat lawsuits – at least a dozen of which have already been successful – says Banzhaf, and the lawsuits may be coming faster than many doctors believe because of the growing concerns and enormous costs of the growing epidemic of childhood obesity.
Banzhaf’s law students initiated the first successful fat law suit against McDonald’s, one which resulted in a $12.5 million settlement. Subsequently the fast food giant was forced to pay an additional $8.5 million to settle another fat law suit.
A new fat lawsuit target may be pediatricians who refuse to follow these official guidelines to help treat obese children as young as 6. If, for example, a young child subsequently develops diabetes or another disease caused by his untreated obesity as many do, the doctors could be liable for medical malpractice, says Banzhaf.
"Just as it is medical malpractice for a physician to fail to warn a patient about a cholesterol level of 250, and to fail to suggest appropriate methods for dealing with the medical problem, so too it appears it may now be considered malpractice for a pediatrician to fail to warn parents of the serious health risk obesity causes for a child, and also to "provide or refer" the child to effective treatment for the condition.
Reasonable Care
The legal standard of practice against which a physician's behavior is measured in a malpractice trial - "reasonable care" - is "that which is customary in the medical community."
When the major medical association in a particular field makes a very specific recommendation - especially one using the mandatory word "should" - as the appropriate standard of care, both judges and juries are likely to see it and adopt it as a customary and appropriate standard of care, and to find those who do not live up to it to be liable for medical malpractice, explains Banzhaf.
This is especially true, says the law professor, since many parents may not realize that their children are obese (and not simply "chubby" or with some "baby fat"), and the very serious risks of diabetes and other deadly diseases pediatric obesity tends to cause.
“If a doctor simply told a patient that he has a a cholesterol level of 250, without telling him what it meant, the very significant medical risks it indicates, and various treatments and other steps which the patient should take, he would clearly be guilty of medical malpractice,” says Banzhaf.
"Why should it be any different if a physician tells a parent the child's weight, or even his calculated BMI, and doesn’t provide similar warnings and medical followup?"
Many studies have shown that warnings about health problems from physicians - whether related to smoking, blood pressure, drinking, illegal drugs, or obesity - can have a very important impact in making them realize how serious the problem is, and in managing to make the difficult behavioral modifications necessary to deal with the problem.
But surveys consistently show that many physicians don't even warn patients about such problems, much less provide, in this situation, the "intensive health behavior and lifestyle treatment" the APA has determined "should" be provided to obese youngsters, argues Banzhaf.
Years ago, where a psychiatrist was successfully sued for failing to warn anyone when a patient threatened to kill a named individual and then did so, most psychiatrists immediately changed their behavior and began warning about such threats.
Malpractice law suits have also forced hospitals to make important changes in the way patients are monitored, operations are performed, and drugs dispensed, and have led to many other changes in medical procedures and practices.
"The day after the first pediatrician is sued for failing to effectively treat an obese child who as a result develops diabetes or some other serious medical problem is the day you will begin seeing many doctors begin doing what they should have been doing all along," says Banzhaf, noting how effective law suits have been in getting restaurants to pay attention to inebriated customers, and corporations to crack down on racial discrimination and sexual harassment.
Indeed, since history shows that medical guidelines are often not followed unless and until lawsuits are filed, malpractice lawsuits against pediatricians who refuse to follow established guidelines for treating obesity may be the most effective tool available today to fight the growing epidemic of childhood obesity, suggests the professor.
