Causation: A problem for all in missed cancer cases
At Gair, Gair, Conason, Steigman, Mackauf, Bloom, & Rubinowitz in New York, NY, many potential clients ask whether their cancer should have been diagnosed earlier and, if so, whether that failure rose to the level of medical malpractice, says Stephen H. Mackauf, JD, an attorney with the firm.
"The types of cancer cases we see probably reflect the incidence of cancer types in general," says Mackauf. "For example, we see a lot of claims involving breast cancer."
The typical breast cancer case involves a young woman who saw her doctor because of a breast lump and is sent her for a mammogram, which is negative. "The doctor tells her it’s just fibrocystic breast disease and that she should return in one year," says Mackauf. "When she returns in a year, she has advanced breast cancer."
Other frequent cases involve an abnormal test result, such as a suspicious X-ray or a suspicious biopsy, that somehow just gets filed away in the patient’s chart. "The patient returns in a year or so because they were never advised of the abnormal result, and now they have advanced cancer," says Mackauf. (See related story, below, on studies showing underlying causes of missed cancer claims.)
A retrospective review of 307 closed ambulatory care malpractice claims showed that 59% of claims for missed or delayed diagnosis involved cancer patients, most often breast or colorectal cancer.1
Saul Weingart, MD, MPP, PhD, chief medical officer at Tufts Medical Center in Boston, says, "Malpractice claims have shifted from the inpatient setting to the primary care office," where missed cancer diagnosis claims, especially colon, lung, prostate, and breast cancer, are prevalent.
Is claim defensible?
Missed cancer claims typically revolve around "issues of fact," such as a patient claiming she reported a lump and the physician says she didn’t, or a physician saying a surgical consult was recommended and the patient says there was no such recommendation, says Mackauf.
"It is because of such factual disputes or truth-telling contests’ that good record-keeping is vital," he says. For example, if a patient refuses a test or a treatment, physicians should document this fact clearly, stating that they explained the significance of the refusal to the patient. "Write Follow up in X days or weeks’ in the chart. Each time the patient returns, the physician should document the repeated refusal again," says Mackauf.
In cases alleging failure to diagnose cancer, causation is often the most vexing problem for both sides, he says. "In other words, how much better would the patient’s prognosis have been if the cancer had been diagnosed when the patient says it should have been diagnosed?" Mackauf asks.
If the alleged failure was actually a failure to diagnose a distant metastasis, it would be almost impossible for the patient to be able to prove significant harm as a result of the delay, for example. "At the other extreme, if despite the delay, the plaintiff’s cancer was diagnosed at Stage I, what harm was there from the delay?" he asks.
The defense might argue that although the cancer should have been diagnosed sooner, a short delay didn’t make any difference in the patient’s outcome. "The longer the delay, the stronger the patient’s case," says Mackauf.
- Gandhi TK, Kachalia A, Thomas EJ, et al. Missed and delayed diagnoses in the ambulatory setting: a study of closed malpractice claims. Ann Intern Med 2006; 145(7):488-496.
- Stephen H. Mackauf, JD, Gair, Gair, Conason, Steigman, Mackauf, Bloom, & Rubinowitz, New York, NY. Phone: (212) 943-1090. Fax: (212) 425-7513. Email: firstname.lastname@example.org.
- Eric Poon, MD, MPH, Vice President/Chief Medical Information Officer, Boston Medical Center. Phone: (617) 414-5951. Fax: (617) 414-9334. Email: Eric.Poon@bmc.org. F