Can a Medical Malpractice Suit be Filed for Experimental Treatments?

Experimental therapies are common in the medical field.  As increased medical technologies and medications emerge, physicians frequently require patient data in order to determine the successes of these advances.  Thus, experimental treatments may be sought.  While numerous experimental therapies result in positive outcomes, there are occasions where the usage of experimental therapy may give rise to a medical malpractice case. 

Risks Associated with Experimental Treatments

Since experimental therapies are not proven for effectiveness, there are risks which are involved in their use.  Depending upon the nature of the experimental therapy, these risks may include:

• Stroke
• Heart attack
• Paralysis
• Organ damage
• Brain damage
• Convulsions
• Seizures
• Neurological damage

Informed Consent and Doctor Liability

When a physician seeks to perform and experimental therapeutic procedure or prescribe an experimental drug for treatment, the physician has a legal duty to inform the patient about the experimental nature of the treatment and its risks.  This is referred to as “informed consent.”  In addition, the patient has the absolute right to refuse to participate in the proposed treatment.  Where a physician fails to inform a patient of these matters, there may be a medical malpractice case based upon lack of informed consent.  Moreover, there are consent forms which are utilized when a physician engages in an experimental therapy. These consent forms usually attempt to limit liability.  Even though these forms may be signed by the patient, the consent provided does not relieve the physician from negligence in the administration of the experimental therapy. Hence, there may be a cause of action for medical malpractice despite the existence of the consent form.

Filing a Medical Malpractice Suit for Experimental Treatment Injuries

When seeking to file a lawsuit for medical malpractice based upon experimental treatment, one should retain the services of an experienced medical malpractice attorney. In addition, one should research the background of the attorney in order to obtain information indicating the attorney’s experience in handling medical malpractice cases involving the practice of experimental medicine, or related types of medical malpractice cases. 

The medical malpractice attorney can handle the commencement of the lawsuit on your behalf.  While every jurisdiction’s requirements vary, most states require the filing of a summons and complaint against the physician, hospital and/or drug manufacturer in order to commence the medical malpractice action.  Furthermore, an attorney who possesses experience in handling experimental medical treatment suits will have a sophisticated medical and legal understanding of how experimental treatments can result in injury and malpractice; this expertise can result in the recovery of substantial amounts for the patient.