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Medical Malpractice and HIV?
Sep 16, 2012

Ok, this is not the normal question we get here but I am just wondering if I have potential legal recourse depending upon the way this turns out. I have been taking Sustiva and Truvada since 2005. It was my first drug regimen and I have had an undetectable viral load since starting therapy. About 6 months ago, my physician noted that I was experiencing what appeared to be kidney damage from the medication. In consulation with his colleagues, he recommended the following change to my drug therapy 1. Take sustiva every day. 2. Take Truvada every other day. My doctor told me that his colleagues had used this regimen successfully to reduce kidney damage and also maintain viral supression. I was skeptical as it is not a published regimen, but I was assured that this had worked well in other patients. I followed this regimen for the last 6 months. My viral load was undetectable at 3 months but now at 6 months it is detectable at 1345 copies/ml.

I am very concerned obviously not only that this unapproved drug regimen is not working, but also that I might now have virus that is resistant to all three drugs and this might severly limit further treatment options.

Since this regimen (every other day) is not approved or even studied to my knowledge is there the potential that this could be malpractice?

Response from Ms. Douaihy

Dear Writer,

Thank you for writing in to ask whether the highly active anti retro-viral treatment (HAART) regimen prescription given by your physician may be considered malpractice. From reading your question, it appears you are concerned that your new drug regimen caused your viral load to increase where none existed three months before. You are also concerned that a consequence of your new prescription regimen will be resistance to certain drugs resulting in devastating effects on your ability to fight HIV in the future.

Not knowing the exact details of your case, I'd like to give you general information about medical malpractice claims. "Medical malpractice" is a civil action for professional negligence by a health care provider whose acts (or omissions) deviate from accepted industry standards of care and cause injury or death to the patient. Generally speaking, an HIV positive patient may have a claim for malpractice if (1) actual injury results from his doctor's treatment, (2) the prescribed treatment deviated from the HIV medical community's accepted standard of practice for those similar to the patient and (3) the doctor failed to use reasonable diligence in the application of his knowledge to the patient's care.

Because you are concerned that your doctor's advice my have deviated from the norm and caused you injury, I would advise you to consult with an attorney specializing in medical malpractice. A lawyer with this specialty is best equipped to assess the merits of your claim, inform you about your rights under applicable law and help you act within the required time frame if you have a claim. Most counties and states have a Bar Association Attorney Referral Service, which can direct you to a specialist attorney in your area. You can search for a lawyer referral service in your jurisdiction by checking out the American Bar Association's directory linked below.

Notwithstanding the above, you may also want to consider confronting the hospital or your physician directly about your concerns. You do not forfeit the right to bring a malpractice claim by asking these questions.

It sounds like you are a terrific advocate for your personal wellness and I hope you continue to take the necessary steps to ensure that you are receiving the very best health care.

I wish you all the best.

American Bar Association Lawyer Referral directory


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