Advocacy Update

Oct. 30, 2020: Judicial Advocacy Update


A physician determined a lump in a patient's breast was benign. However, two years later, the lump increases in size and a biopsy showed the lump was cancerous. The cancer spread to the woman's lymph nodes and metastasized to her bone marrow.

Standing for physicians

The AMA Litigation Center is the strongest voice for America's medical profession in legal proceedings across the country.

If the patient wants to bring a medical liability lawsuit, does a six-month statute of limitations clock to file a claim begin ticking when the cancer diagnosis is delivered to the patient? Or did that clock start after another physician—more than a year after the cancer diagnosis—told the patient that the original physician should have found the tumor to be malignant during the first mammogram and ultrasound? The Michigan Supreme Court is poised to answer that question. The case law on that scenario is well settled in Michigan, the Litigation Center of the AMA and State Medical Societies and the Michigan State Medical Society (MSMS) told the court in a brief they filed arguing that the justices should uphold the appellate court's decision to dismiss the case. The appellate court found that when the woman was diagnosed with cancer "she had sufficient information to trigger the running of the discovery rule period" and that she did not meet her burden to show otherwise. She filed the lawsuit 17 months after the cancer diagnosis. "Patients and physicians must be able to rely on Michigan courts to follow sound, established precedent and produce just outcomes, even in difficult situations," the brief tells the court in the case, Bowman v. St. John Hospital and Medical Center. "Michigan's lower courts have long ensured that a plaintiff 'act diligently in discovering his cause of action and cannot simply sit back and wait for others to inform of his possible claim,'" the brief says, citing an earlier ruling. Read the full story here.

In 2009, Congress knew it needed to stop companies that manufactured tobacco and nicotine products from deceptively marketing new products such as "light cigarettes" and e-cigarettes as "healthier alternatives," particularly to the nation's youth. In an effort to stop those tactics, lawmakers passed the Family Smoking Prevention and Tobacco Control Act (TCA) and charged the Food and Drug Administration (FDA) with putting new tobacco products through premarket reviews, including labeling and marketing plans. The TCA prohibited manufacturers from selling new tobacco products unless company executives could prove that each product was "substantially equivalent" to those commercially available in 2007, or that allowing its sale would be "appropriate for the protection of public health." But, as the U.S. District Court for the District of Maryland found, FDA officials didn't follow through with what Congress mandated it to do under the TCA and youth tobacco and nicotine use has soared. The court told manufacturers they must file premarket applications by May 2020, saying it was not lawful or reasonable for the FDA to abdicate its statutory obligations by delaying review until 2021 for combustible products and 2022 for noncombustible products. With the health of the nation's youth at stake, the Litigation Center of the AMA and State Medical Societies urged a federal appeals court to uphold the lower-court decision in the case, American Academy of Pediatrics (AAP), et al. v. United States Food and Drug Administration, et al. The AMA Litigation Center joined with the Public Health Law Center and other medical associations in filing an amicus brief supporting the AAP and other plaintiffs in the case. "Despite the claims of the profit-driven industries behind them, these products are not safe. Like cigarettes, e-cigarette use leads to nicotine addiction, which interferes with brain development and cigar smoking causes cancer, heart disease, lung disease, stroke and death. The FDA violated Congress's mandate to hold the line at the pre-TCA baseline with devastating impacts for public health," the brief told the court. But the 4th U.S. Circuit Court of Appeals dismissed the lawsuit, ruling that it is moot because there was new guidance issued in 2020 that supersedes the 2017 guidance that this complaint was based upon. The judges said it "leaves no possible meaningful relief that this court could grant" and that any ruling "as to the procedural or substantive reasonableness of the [2017 guidance] would amount to nothing more than an advisory opinion." Read the full story.