Defense of Breast Cancer Malpractice Claims

Abstract

The goal of this study was to determine whether factors associated with the successful defense and cost of malpractice cases involving the failure to diagnose breast cancer could be identified in medical and legal records. Secondary goals were to develop a multidisciplinary clinical algorithm utilizing National Comprehensive Cancer Network (NCCN) practice guidelines with practitioner risk management strategies. Physician deviations from these guidelines were tracked to identify high-risk areas in the diagnosis of breast cancer. A multidisciplinary clinical algorithm was introduced and practitioner risk management issues were addressed. In this study specific medical, legal, and cost factors were retrospectively abstracted and analyzed to identify associations between medical and legal factors and medicolegal outcome. ProMutual handled 156 malpractice cases involving breast cancer between January 22, 1986, and November 20, 1997. Of the total, 124 cases involving 212 defendants were closed. The closed cases were analyzed, using multivariable stepwise logistic and linear regression, to identify associations between clinical factors and case outcome. Women's health practitioners (WHPs), including obstetrician-gynecologists (OB-GYNs), family medicine, and internal medicine clinicians, were the largest group of defendants (97). Others included radiologists (43), surgeons (33), and pathologists (3). OB-GYNs accounted for 31% of these defendants, with a cost of more than $16 million. The greatest number of specialists represented in the open cases were radiologists, with 38% of the total. The defense model predicts that the probability of successful defense is lessened with inadequate record keeping, a patient that has metastasis and is alive, and a delay in diagnosis of 12 months or more. The overall indemnity model predicts a higher indemnity with the spread of disease at the time of evaluation, a patient who has metastasis and is alive, and a date of occurrence closer to the present. Indemnity is less in patients who have had a lymph node dissection, who have died, or who are alive without metastasis. The WHP model predicts an increased overall indemnity with the spread of disease at the time of evaluation and the presence of a mass without pain. Indemnity decreases with a history of pregnancy, absence of presenting symptoms, or presentation with pain with or without a mass, and the performance of a lymph node dissection.

Advanced Imaging Modalities in Early Stage Breast Cancer: Preoperative Use in the United States Medicare Population

“…While one could argue that larger, possibly academic, centers should be the most knowledgeable about current guidelines, easy access to technology and patient demand in these settings may encourage use of these additional tests. Although this should not theoretically enter into decision making, concern about litigation may reinforce such patient demands, especially among surgeons who are frequent targets of malpractice lawsuits 7 and radiologists who overestimate their risk of being sued. 8 …”

Breast Cancer, Mammography, and Malpractice Litigation: The Controversies Continue

“…A recent survey by an insurance company that provides professional liability coverage for nearly three quarters of all physicians in Massachusetts disclosed similar findings [4]. The survey found that 70% of lawsuits closed with an indemnity payment to the patient or her family, even though medical oncology experts testified in many cases that the patient's breast cancer was so aggressive that earlier diagnosis would not have made any difference in treatment or outcome.…”

Trouble in the Office: Liability Issues in Ambulatory Care

“…Delay in breast cancer diagnosis continues to be the leading cause of professional liability claims against physicians 9,10 . A review of closed cases in Massachusetts found that systems failures, such as not identifying or following at‐risk patients, coupled with a population that is young and either pregnant or nulliparous, increased the indemnity costs for breast cancer.…”

“…A review of closed cases in Massachusetts found that systems failures, such as not identifying or following at‐risk patients, coupled with a population that is young and either pregnant or nulliparous, increased the indemnity costs for breast cancer. Their case review led to the development and publication of a multidisciplinary algorithm for breast care 10 . Clinical actions that increase the risk of delaying breast cancer diagnoses include assuming that women are too young to develop cancer or do not have risk factors, ignoring patient complaints, failing to screen for risk factors, not documenting the clinical findings and recommendations, trusting mammography when other tests might be more useful, and not referring appropriately 4 …”

“…Their case review led to the development and publication of a multidisciplinary algorithm for breast care. 10 Clinical actions that increase the risk of delaying breast cancer diagnoses include assuming that women are too young to develop cancer or do not have risk factors, ignoring patient complaints, failing to screen for risk factors, not documenting the clinical findings and recommendations, trusting mammography when other tests might be more useful, and not referring appropriately. 4 When a woman calls to ask for evaluation of a breast…”