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Human Research Studies and Medical Malpractice Liability

By Thomas A. Moore and Matthew Gaier
September 29, 2008

We have written previously about affirmative treatments that are novel or still under investigation, the special rules applicable to such human experimentation, and the circumstances under which it may result in liability. More recently, we had an experience in a case involving a related circumstance ' not affirmative experimental treatment, but a human research study regarding modes of diagnosis.

The plaintiff in that case participated in a program for the early detection of cancer. She developed cancer while in the program, but those conducting the program failed to make the diagnosis. She claims that tests and examinations administered pursuant to the program should have led to the cancer being caught at an earlier stage.

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