Doctors Could Be Next Fat Law Suit Targets
After Six Successes and Over $25 Million Won, Movement is Evolving

Physicians in malpractice actions could be the next major target of so-called fat law suits – six of which have already been successful – says public interest law professor John Banzhaf, and the law suits may be coming faster than many doctors believe, he says.

Banzhaf’s law students initiated the first successful fat law suit against McDonald’s, one which resulted in a $12.5 million settlement. Recently the fast food giant was forced to pay an additional $8.5 million to settle another fat law suit. Also, the U.S. Court of Appeals for the 2nd Circuit unanimously reinstated a class action law suit – in which Banzhaf is an advisor – seeking to hold McDonald's liable for contributing to the obesity of minors.

A new target, says Banzhaf, may be physicians who – in defiance of federal guidelines – refuse to counsel patients who are obese, and to help them lose weight through therapy. If, as a result, they come down with diabetes or some other disease, the doctors could be liable for medical malpractice, says Banzhaf.

Although patients who were advised to lose weight were nearly three times more likely to shed excess pounds, the Centers for Disease Control [CDC] has reported that about 60% of physicians don't advise their patients to do so.

"Since this flies in the face of official federal guidelines providing that doctors must warn patients if they are obese, and help those who are obese with 'intensive counseling and behavioral modifications,' these doctors are opening themselves up to malpractice law suits," suggests Banzhaf.

"Just as it is medical malpractice for a physician to fail to warn a patient about a cholesterol level of 250, or a C-reactive protein level of 8 mg/L, and to suggest appropriate methods for dealing with the medical problem, so to it appears to be malpractice to fail to advise patients with a BMI over 30 of the very high medical risks created by their obesity, and to offer proven methods for modifying the behaviors which cause it," says public interest law professor John Banzhaf.

"A patient who wasn't alerted by his physician that he was 'obese' under the current strict standards, and subsequently suffered from diabetes – including an unexpected diabetic shock – would have a very strong case against a doctor who violated these guidelines and failed to warn him about just how much obesity raised his risks for these and other obesity-triggered diseases."

The standard of practice against which a physician's behavior is measured is "that which is customary in the medical community." When an official governmental body recommends a simple and inexpensive practice which is already in effect in many medical facilities as the appropriate standard of care, both judges and juries are likely to see 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 Banzhaf, since many people may not realize that they are obese under the new and much stricter guidelines, and that weight which was not considered medically dangerous only a few years ago is now known to substantially raise the risk of many serious and even life-threatening diseases. Indeed, notes Banzhaf, many people were unaware until recently that obesity could lead to various deadly cancers.

“If a doctor simply told a patient that he has a PSA reading of 8.5, or a C-reactive protein level of 200, without telling him what it meant, the very significant medical risks it indicated, and various treatments and other steps which the patient might take, he would clearly be guilty of medical malpractice,” says Banzhaf. "Why should it be any different if a physician tells a patient his weight, or even his calculated BMI, and doesn’t provide similar warnings and counsel?"

The U.S Preventive Health Service found that there is good evidence that physician interventions can help patients lose from 6-11 pounds in one year; a loss in weight which translates into enormous health care savings, since obese patients on the average use $1500 more health care services that non-obese patients, says Banzhaf.

Many studies have shown that warnings about health problems from physicians -- whether related to smoking, drinking, or obesity -- can have a very important effect 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 most physicians don't even warn patients about such problems, much less provide the "intensive counseling and behavioral modifications" which the Health Service has said should be the standard.

Years ago, where a single psychiatrist was sued for failing to warn anyone when a patient threatened to kill a named individual and then did so, psychiatrists immediately changed their behavior and began warning victims about such threats. Malpractice law suits have also forced hospitals to make important changes in the way patients are monitored and drugs dispensed, and have led to many other changes in medical procedures and practices.

"The day after the first physician is sued for failing to effectively warn an obese person about the risk of a heart attack, stroke, diabetes, or other deadly disease is the day you will begin seeing millions of physicians 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.