vol1 - Page 85
Page 85
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their colleaques_ and, uitimately_ by the states and society at
At an initial level, dete_ination of whether a doctor_
in making a treatment decision has acted properly, is governed by
the law of medical malpractice. Indeed, medical malpractice
adoptsthe standard of _accepted medical use m in resolving just
this decision_ Thus, a court will consider whether a doctor's
employment of a drug has a _currently accepted medical use. w_-_/
_i Accepted medical use in this context is demonstrated by proof
that a school of thought has developed with respect to the use of
a particular drug in treatment in the appropriate medical
• '_ community. _// Since many legitimate schools of thought may exist
with respect to the appropriate treatment for a condition, the
opinion ofa Nrespectable minority _ of _he medical community is
sufficient to demonstrate acceptance in the particular case. 3-8/
Applying this standard, courts look to _e testimony of patients,
physicians, researchers_ and other experts in an effort to
resolve the question°
The legislative history of the provision clearly
supports this interpretation. During hearings before the House
___/ As discussed, _prA, p_ 9 no 28_ FDA, ands for that
matter, the entire Federal Government, has little or no authority
to regulate the practice of medicine°
_6/ e_ _Ch e v c _ 505 F.2d 489 (6th Cir. i974)_
.....
_rey v_ Thomas Jefferson University o_hiJ_l_ 472 A.2d 1083 (Pao
Super_ Ct. 1984); Baldor v. Ro_ers, 81 So. 2d 658 (Florida,
1954), rev'd o_ ot_ g round_ 81 SOo 2d 661 (1955) o
!7/ Furev_ ___P2__.
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