To WIN YOUR CASE, You Need to Know: What are THEY Thinking?

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Can the insurer prevent a large payout?

Does the employer face worker issues?
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Current Issue: January 2018
Experimental Treatments: The Invention of Risk and Liability

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Experimental Treatment Risks and Liabilities

Medical research and experimentation can produce new and exciting medical treatment, but concerns may arise when patients receive innovative or experimental treatment without fully understanding the risks involved. The use of experimental or innovative treatments also may expose the health care provider to malpractice liability.


Experimental treatments may carry a higher level of risk than an established form of treatment, particularly because risks of the treatment are more likely to be unknown. These unknown risks increase the difficulty a health care provider may face in disclosing risks of treatment to a patient to obtain the patient’s informed consent. When patient injuries arise, litigation may follow.


Attorneys, physicians, insurers, employers, and other potential parties to litigation need to understand the types of lawsuits and other liability issues that may arise in connection with obtaining a patient’s informed consent to experimental treatment and in providing experimental and innovative treatments.

The Perspectives: Improve Your Strategy


What proof is needed for a claim of medical battery related to lack of consent to experimental treatment? And, what is a potential strategy for the attorney to employ?


How can liability for medical malpractice be avoided for a physician’s failure to obtain a patient’s informed consent to experimental treatment? And, what is a potential strategy for the physician to employ?


Can a payout under a medical insurance policy be avoided by proof that the medical services were experimental in nature and there was no coverage for an experimental medical treatment? What is a potential strategy for the insurer to employ?


Can an employer be liable for the cost of a worker’s experimental medical treatment? And, what is a potential strategy for the employer to use?

Practice the Technique: Checklists


Check this list of facts and circumstances tending to show a health provider’s liability for malpractice or negligence for an injury from an experimental treatment.


Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving an injury from an experimental treatment or innovative practice.


The insurer should check these “red flags” and inconsistencies when investigating a claim for injury resulting from an experimental treatment or innovative practice.


Use this checklist to determine if the employee’s injury requiring an experimental or innovative drug, treatment, therapy, device, or similar medical practice would be considered “work related” and occurred “in the course of the employment.”

Expert Analysis

How Does the Potential of Malpractice Liability Affect Physician Innovation?

Anna B. Laakmann, JD

What Experimental Therapies Are Being Considered For Tinnitus Treatment?

LaGuinn Sherlock, Au.D., CCC-A


Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.

Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.

Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.

Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving informed consent to experimental or innovative treatment?

Medical Information

Experimental Treatment; Innovative Practice

This section provides detailed medical information on experimental treatments, innovative practices, investigational studies, research and clinical trials. Also, discussed are institutional review boards, national clinical guidelines, medical necessity, compassionate use, and “right to try” legislation.

Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on innovative and experimental medical treatment.

Medical Law Perspectives
Other Reports

Colonoscopy: Scoping the Risks and Liabilities

Injecting Risk Into Steroid Use and Administration

Liposuction: The Skinny on Malpractice Liability

Spinal Cord Injury Malpractice: Back to Back Problems

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