HEALTH CARE LAW
Finding Sources of Litigation in Breast Cancer Cases
by Lee S. Goldsmith
During October 1997 -- breast cancer awareness month -- numerous programs were held by medical centers and women's groups. One of the more interesting was the program supported by the Breast Center at the Monmouth Medical Center. The program was marketed to physicians and other health care personnel and provided lectures on the newest medical knowledge and advancements. It also incorporated a lecture on the legal aspects of breast cancer in an attempt to increase the awareness of the attendees of the most common pitfalls or errors that arise in the management of individuals who are at risk for the development of breast cancer.
Two clear points could be made. First, that the new concepts will create potential areas for additional litigation. Second, that breast cancer, as a disease, will continue to be a source of a great deal of litigation indicating numerous errors by health care professionals and unnecessary injuries to large numbers of individuals.
Traditionally, litigation arising out of the problem of breast cancer has focused on a number of specific areas.
Mammography
Mammography should be a part of the preventive medicine program for all women. Guidelines are continually being formulated as to when women should start having screening mammograms and the frequency with which those mammograms should be performed. However, it should be emphasized that they are only guidelines which must be modified if there is a family history of breast cancer, the finding of a genetic makeup indicating a predisposition to cancer, the presence of a suspicious mass or some other reasons that would obviate guidelines. Therefore, when there are indications, a mammography should be ordered and performed. Failure to do so may lead to no mammography and a failure to diagnose a condition.
Once the mammography is ordered a second set of potential problems arise. There is new equipment and technology always being developed. There is a tendency among some physicians to continue to rely on equipment and technology that has become outdated. New technology is expensive but reliance on old technology may deprive some patients of a correct diagnosis.
When mammography is performed the current films must be read correctly and compared with prior films. Comparisons are important. Often a finding which in and of itself would not be suspicious becomes suspicious when compared with a prior film. A current problem arises when employers change insurance carriers and different carriers have contracts with different providers. A patient might find that mammography is available with a different provider every couple of years and then it may become the obligation of the patient or the provider to get the prior films. The provider always will be aware of the importance of prior films. That importance must be communicated to the patient or the provider should obtain the prior films. Finally the films may be misread. More often than appropriate, the presence of a mass or of abnormal calcifications should lead to a diagnosis but are not seen or not reported.
Genetic knowledge will play an increasing role in breast cancer. Some women may want to be tested. The interest may be greater in women who have come from families with histories of cancer and especially with histories of breast cancer. The question may be presented as to the potential obligation of the health care provider to take that complete history and provide the patient with the option for genetic testing. Considering the current environment of cost containment some patients may not be provided with the option of deciding as to whether or not they wish to take the test or not. However, when that information is provided and the patient is tested there are few guidelines as to how the information should be managed.
Individual genes have been identified that will identify individuals at the greatest risk for the development of cancer. Certainly it will be an individual's choice as to whether or not the test will be performed. However, if the test is performed multiple other questions will arise. Even with the presence of a problem gene what is the real risk in that patient for cancer? If there is a risk how should that risk be managed and what advice should the patient be given?
If the patient is a 40-year-old woman and the test is positive will the physician be under an obligation to inform the patient's mother or her daughter? There is a physician-patient privilege and if the patient does not authorize, or even prohibits the release of the information the physician will have a burden of making the decision. At the present time there is no answer to this question. There is case law indicating that a physician might be required to advise members of a family when an individual had a familial propensity for colon cancer, but in that case the individual had died and the executor could have authorized the release of the information.
Breast Examination
Most individuals should do self examinations. In addition, examinations should be performed on a regular basis during routine physical examinations. The second major area of malpractice involves the management of a mass when it is palpated. Some physicians still feel that they can tell whether a mass is benign or malignant based on their touch. However, this practice questionable when there is available technology in the form of mammography, ultrasonography and needle biopsy. Ultrasonography is a technique of bombarding the mass with sound waves to make a determination if the mass is cystic or solid. The needle biopsy is done under radiological guidance so that even if it is a small mass it can be located and the biopsy will be taken from the mass itself. The likelihood of the mass being missed is quite small.
A mass should not be ignored until it is determined that the mass is benign.
One of the most interesting portions of the Monmouth program was the talk given relating to what is called "signal node." To put this into perspective, patients have a fear of breast cancer which is natural. Breast cancer can be and is a life threatening disease. However, the treatment of breast cancer often results in mutilative surgery so that the patient is disfigured and may suffer severe complications with even the best performed surgery. Often the surgeon will want to remove all of the lymph nodes on the affected side. The concern is that the cancer has spread to the lymph nodes and the surgeon and oncologist will want to know if any of the lymph nodes have cancer within them and if so the number of nodes that are affected. Radiation therapy and chemotherapy protocols are based on a number of factors and one of those factors is lymph node involvement.
The "signal node" concept relates to the fact that the lymph will flow from the breast to a "signal node" and then branch out like a tree to additional nodes. The idea is that if the signal node does not have any evidence of cancer metastases then none of the other nodes on the tree will have any cancer. Therefore, if one finds and removes the signal node and there is no cancer then there is no necessity for removing any of the other nodes. When the other nodes are not removed many of the side effects associated with the surgery will be avoided. The problem is that there a few individuals trained in the technique of finding the signal node and some controversy with the entire concept. However the theory would appear to be sound.
As the concept of the "signal node" becomes more generally accepted there will be additional problems for the surgeons. Some surgeons will attempt to do the procedure without adequate training and the signal node will be missed. Others will continue to use old outdated techniques and extend the unnecessary damages to the individuals with a tragic disease.
The Monmouth Medical Center Program emphasized the need for current knowledge, modern technology and problem avoidance through knowledge of potential pitfalls. The goals were admirable. Hopefully they will prove successful.
The author, an attorney and medical doctor, is a partner with Goldsmith Harz in Englewood Cliffs.
Copyright 1997 New Jersey Law Journal. Reprinted with permission.
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