| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
|
|
|
|||||||
|
|||||||||
Malpractice Issues in Radiology |
1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
Received January 13, 2003; accepted after revision January 16, 2004.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author. All opinions expressed
herein are those of the author and do not necessarily reflect those of the
American Journal of Roentgenology or the American Roentgen Ray
Society.
A 32-year-old woman discovered a lump "larger than a pea" but "smaller than a marble" in her right breast. A needle biopsy of the small mass performed by her physician failed to reveal evidence of cancer. Seventy days later the patient returned to her physician, complaining that the lump in her breast had not gone away. The physician attempted a needle aspiration but obtained no fluid or tissue. The physician instructed the patient to return in 2 weeks if the problem persisted. Three weeks later the patient returned, and this time the physician ordered a mammogram. A radiologist interpreted the mammogram as showing a 3 x 4 cm lesion in the right breast that was suspicious for malignancy. A biopsy confirmed the presence of carcinoma, and a radical mastectomy was performed.
Twenty-one months later the patient filed a lawsuit against her physician, alleging negligence in not promptly diagnosing her cancer. Specifically, the patient claimed that the 92-day delay in diagnosing her breast cancer resulted "in an increased number of cancer cells in her body and growth of the tumor." The patient sought compensation for her "past, present, and future pain, suffering and discomfort, both physical and mental," and "debilitating emotional distress, including fear of an increased risk of recurrence of cancer."
At a subsequent jury trial held 4 years after the initial diagnosis of breast cancer had been established, the patient's treating oncologist testified that the woman's cancer had been "moderately aggressive" and that because "the average cancer cell doubles once every hundred days, it was more probable than not that [the patient] experienced some cancerous growth during the period involving the delayed diagnosis." The oncologist also stated that even though the patient was cancer-free at the time of trial, she nevertheless "had a 25% risk of the cancer recurring in the future" and that if the cancer did recur, it would be "terminal."
Another expert testifying on behalf of the patient stated that the 3-month delay in treating the woman's cancer increased the chances of cancer metastases and decreased the chances of the cancer's curability because "every day counts...every day there is a chance of cells metastasizing to various organs." A psychologist testifying on behalf of the plaintiff asserted that the woman's "cancerphobia was entirely reasonable" and that she "suffered from depression caused in part by intertwined feelings concerning her breast cancer." The psychologist added that the patient had also demonstrated "anxiety, fear, sadness, and some anger" toward the defendant physician.
Experts retained on behalf of the defendant physician testified that the 92-day delay in diagnosing the patient's cancer did not alter her treatment or prognosis but nevertheless could not deny on cross-examination that the patient's "cancer cells continued to multiply during the period involving the delayed diagnosis" and that the tumor "could have doubled in size during this period." The defense experts also conceded on cross-examination that "the larger the size of the tumor, the worse the prognostic indicator for recurrence."
At the conclusion of testimony, the judge instructed the jury that damages can be awarded for:
noneconomic losses or injuries, including pain and suffering; inconvenience; emotional stress; and impairment of the quality of life caused by an increased risk of cancer due to an increase of cancer cells in her body.
After deliberation, the jury returned a verdict in favor of the plaintiff, awarding her $220,000 in noneconomic damages. The defendant physician appealed the verdict to the state's appellate court, arguing that the patient could not recover damages simply because she feared that she might suffer a recurrence of cancer in the future. Agreeing, the appellate court reversed the jury verdict and ordered a new trial.
The plaintiff patient then appealed to the Colorado Supreme Court, asking it to overrule the appellate court ruling. The supreme court reversed the appellate court and reinstated the original jury verdict.
Decision of the Colorado Supreme Court
The Colorado Supreme Court began its written decision with the following observation [1]:
We note that [the patient] did not request damages for the increased possibility that she might suffer a recurrence of cancer. Instead she sought damages for "emotional distress, including the fear of an increased risk of recurrence of cancer." The case at trial focused more on the emotional distress brought on by the increased risk caused by the defendant physician's misdiagnosis than the risk itself.
The court then continued:
There was sufficient evidence that the plaintiff suffered an increased cancer risk...and that the delay in diagnosis led to the following physical effects: (1) an increase in tumor size; (2) the possible metastases of existing cancer cells; and (3) the development of further genetic resistance to treatment. In addition, [the plaintiff's expert] testified that the delayed diagnosis increased the plaintiff's risk of recurring cancer, which made her fear of the increased risk "entirely reasonable."Although surgery removed the plaintiff's cancerous mass and her lymph nodes, medical evidence suggests that a delay in treatment which leads to the growth of a cancerous tumor invariably results in a more serious prognosis for long-term survival.... There was adequate evidence that defendant's incorrect diagnosis proximately caused plaintiff to suffer compensable emotional distress when she learned that removal of a cancerous tumor had been delayed.... That emotional distress would be a consequence of defendant's alleged negligence need not be supported by expert testimony, such being a matter fully within the personal knowledge or experience of the jury.
The court then concluded [1]:
In cases where the plaintiff demonstrates that her cancerous condition physically worsened as a result of the delayed diagnosis, the plaintiff has demonstrated a sufficient physical injury to permit recovery of emotional distress damages. Thus, the usual reservations courts have concerning jury speculation and conjecture in cases involving plaintiffs seeking purely emotional damages are inapplicable in a case such as this.... The plaintiff's fear of an increased risk of cancer had to be reasonable because sufficient evidence exists in support of the jury's verdict. We will not disturb it on review.
Pain, Suffering, and Mental Anguish
To prevail in a medical malpractice lawsuit, a plaintiff patient must prove not only that the defendant physician was negligent, but also that the physician's negligence caused an injury to the patient [2]. The injury usually consists of physical damage to the patient's body, ranging from a bruise to death. However, the injury may also be mental in nature. At the conclusion of a malpractice trial, the jury is instructed by the judge as to what it may consider in awarding appropriate compensation or damages for any injury the plaintiff may have sustained. Among the elements of damage for a jury's consideration are those categorized as economic, such as past and future medical expenses, and those categorized as noneconomic, such as fear, mental anguish, pain, or suffering. The Iowa Supreme Court elaborated on mental anguish, pain, and suffering [3]:
The pain and suffering which the law allows is not confined to physical pain. It includes as well the mental anguish, the sense of loss and burden, the loss of enjoyment of life suffered by a person who is materially disabled...[and] depriving [the patient] of the opportunity to receive early treatment and a chance at realizing any resulting gain in her life expectancy and physical and mental comfort.
Even though pain, suffering, and mental anguish traditionally occur only in association with or subsequent to physical bodily injury, the existence of the latter is not always necessary for the awarding of compensation to the patient. This idea was borne out in a Colorado appellate court decision. A woman who consulted her physician because of swelling of the parotid gland was told by the physician that the swelling was inflammatory in nature. It was not until 8 months later that a diagnosis of carcinoma was established. After surgical removal of the tumor, the woman's facial nerve was injured, and, as a result, she suffered permanent partial facial paralysis. The patient filed a medical malpractice lawsuit against her physician, alleging that the physician was negligent in both delaying the diagnosis of the malignancy and causing facial nerve damage. The patient alleged that she sustained emotional distress that had occurred "when she learned that removal of the tumor had been delayed for eight months." At what would have been the midpoint of the trial that followed, the trial court judge stopped the proceedings and dismissed the charges against the defendant physician, ruling that the patient plaintiff presented insufficient evidence to prove her allegations of physician negligence and resultant injury. On appeal, the Colorado appellate court reversed the trial court's dismissal and remanded the case for a new trial. Although acknowledging that the plaintiff did fail to produce evidence showing that the facial paralysis was attributable to any act of negligence on the part of the defendant physician, the court nevertheless held that [4]:
There was adequate evidence that defendant's incorrect diagnosis proximately caused plaintiff to suffer compensable emotional distress when she learned that removal of a cancerous tumor had been delayed for eight months.... That emotional distress would be a consequence of defendant's alleged negligence need not be supported by expert testimony, such being a matter fully within the personal knowledge or experience of the jury.... Here it was undisputed that the alleged incorrect diagnosis had a physical impact in that it permitted the further growth of the malignant tumor.
That a person could successfully file a lawsuit against a defendant for "negligent infliction of emotional distress" in the absence of any physical bodily injury claimed by the plaintiff was affirmed by the Colorado Supreme Court in yet another case. The plaintiff, who at the time was 11 years old, had been inside his house with his sister. Alerted by the smell of gas, the boy decided to go outside. While standing near the front porch of the house, the plaintiff witnessed an explosion that lifted the house off its foundation and caused the house to be engulfed in flames. The boy also heard the screams of his sister who had remained inside the house. Although the plaintiff did not suffer any direct physical injury at the scene of the accident, he later claimed in a lawsuit filed by his family and himself that he did sustain "very serious emotional, psychological and psychiatric injuries." According to the plaintiff, these injuries were characterized by the physical manifestations of "nightmares, sleepwalking, nervousness, and irritability."
At the conclusion of the trial that followed, the trial court judge dismissed the boy's claims because of insufficient evidence. The jury did consider independent claims of the other members of the plaintiff's family and determined that the destruction of the residence had been caused by the negligence of the home builder. On appeal, the Colorado appellate court affirmed the trial court's dismissal of the young man's lawsuit, but the Colorado Supreme Court reversed the rulings of both lower courts and remanded the case for a new trial. The state supreme court acknowledged that traditionally plaintiffs indeed had to sustain physical impact or other bodily harm in order to claim emotional or psychologic injuries. The court then stated, however, that because it had a duty to be responsive "to the changing needs of society," it was eliminating the need for physical injury [5]:
It has been argued that emotional damages are simply too speculative, and the possibility of fraudulent claims too high, to permit naked claims of emotional distress. In recent years, however, the medical profession has made tremendous advances in diagnosing and evaluating emotional and mental injuries. While psychiatry and psychology may not be exact sciences, they can now provide sufficiently reliable information concerning causation and treatment of psychic injuries to provide a jury with an intelligent basis for evaluating a particular claim. In this light, we are confident that juries are capable of assessing whether a claim is concocted and fictitious, or in fact, real.[If the defendant's negligence] results in emotional disturbance alone without bodily harm or other compensable damage, the defendant is not liable.... However this rule is not meant to apply where the emotional distress results in physical manifestations of mental illness as is the case presented by the evidence here.... When the defendant's conduct is negligent because of the risk that it will cause bodily harm by immediate impact or in any other manner...and the plaintiff by good chance escapes the threatened harm but is so frightened or shocked as to miscarry or otherwise to be made ill, the defendant is liable.
Courts in other states have ruled similarly. A New Jersey case dealt specifically with emotional distress related to breast cancer and the fear of its recurrence. There, a woman who discovered a lump in her breast was told by her physician "not to worry about it." The tumor increased in size, and 7 months later a second physician found that the tumor was cancerous and the plaintiff was terminally ill. The woman sued her physician for medical malpractice, alleging that his failure to diagnose the carcinoma increased her risk of recurrence and death. At trial, the trial court judge dismissed the defendant physician at the close of the plaintiff's case, finding that the plaintiff had failed to present proof of damages. The New Jersey appellate court sustained the lower court action, but the plaintiff's appeal reached the New Jersey Supreme Court, which reversed the rulings of both lower courts. In a greatly detailed and lengthy written decision focusing on the early detection of breast cancer, the court held that the plaintiff patient did indeed demonstrate compensable injury [6]:
The [patient's] claim is not that absent the 7-month delay in diagnosis a mastectomy would not have been required. Rather, it is that the delay itself caused both physical and emotional injury, and that the delay enhanced the risk that the cancer would recur, requiring additional hospital and medical care.
It appears from reading the court decision that the patient initially was suffering from carcinoma in situ, but that the eventual biopsy performed 7 months later disclosed infiltrating ductal carcinoma. The court continued [6]:
[The plaintiff's expert pathologist] explained a statistical phenomenon: that of those patients who have the type of breast cancer from which the patient suffered, one out of every four will experience a recurrence of the disease. Whereas it is impossible to forecast which patients will be stricken, the statistical fact is that it will be one in four. This statistical risk of 25% is applicable to patients who had been accurately and promptly diagnosed and treated. The pathologist asserted that if there were a 7 months' delay, as was here, there would be "more than a chance" that the patient would fall into the 25% category.There was uncontradicted evidence that the malignant breast tumor actually increased in size because of the delay. Further, the disease had developed beyond the site of the original tumor itself into an infiltrating ductal carcinoma.... The plaintiff was prepared to show that she suffered anxiety, emotional anguish, and mental distress. These were attributable not solely to her having the cancer but also to the growth of the tumor during the time proper treatment was withheld and from the realization, following the confirmation of her malignancy, that the defendant's delay in her treatment had increased the risk that she would again fall victim, perhaps fatally, to the disease.... We hold that an increase in size, no matter how small, would constitute sufficient actual damages to sustain the elements of injury.... An increase in the size of a malignant tumor, by definition, results in the spread of cancer cells into once healthy tissue, and therefore is an injury in and of itself.
The court then turned its attention to the psychologic injury resulting from a delay in diagnosis of breast cancer [6]:
An additional element of injury and damage derives from plaintiff's claims of anxiety, emotional anguish, and mental distress. Plaintiff charged that as a result of defendant's failure to have made a timely and accurate diagnosis and render proper treatment, her "ailment and condition became aggravated and worsened, and she suffered great pain and mental anguish, and will continue to do so, and her physical and mental health were severely impaired." She detailed present mental distress subsequent to her mastectomy, manifested in "insomnia, weight gain, and fatigue." She also claimed dermatological problems and a periodic twitch and pain in the left eye caused by stress. This emotional upset was borne out by the patient's testimony at trial concerning her unrelieved state of anxiety and fear of the growing, untreated tumor and her anger and hostility towards defendant after her tumor was finally diagnosed.Courts have come to recognize that mental and emotional distress is just as "real" as physical pain and that its evaluation is no more difficult. Such distress could well encompass concerns over the anticipated future consequences of malpractice. Plaintiff's claim for mental and emotional suffering from delayed diagnosis and treatment will not be diminished or defeated by a demonstration that delay itself was not the cause of her ultimate physical injury. Although the plaintiff proved no other consequences of this delay, she was entitled to be compensated for the pain and suffering endured for the period of the delay, if she proves that the defendant was negligent.... Actual increased risk of harm, even though not measurable or quantifiable, in the context of medical malpractice, is sufficiently demonstrable to justify its recognition as a compensable form of injury.... A negligent physician should not be allowed to escape responsibility for causing an increased risk that would not have existed but for his negligence simply because of the statistical uncertainty of the risk.
The New Jersey Supreme Court then continued with a fascinating discussion of the "well-known" adverse effects generated by delay in cancer diagnosis [6]:
Harm in the form of increased risk of future cancer attributable to delay in diagnosis and treatment has become so widely accepted by the medical community that the existence of such harm could be reasonably inferred from this professional common knowledge. A survey of the medical literature indicates that it is universally agreed within the medical community that delaying cancer diagnosis and treatment usually increases the risk of metastases.... Examples of the acceptance of this knowledge within the medical community are numerous; experts continuously urge vigilant detection as the most realistic means of improving prognosis. Most specialists in clinical cancer feel very strongly that the earlier one makes a diagnosis of cancer, the greater the chance of a cure. In breast cancer we do know that the bigger the tumor, the worse the prognosis. This concept of "the earlier the better" is the basis for attempts at the early diagnosis of cancer. Earlier treatment is generally believed to improve survival prospects in patients with carcinoma of the breast. Cancer's specific survival time is better for those treated by potentially curative operation when symptoms have been present for one week or less as compared with those who have symptom duration of 6 months or more. Survival prospects are also better in those patients who have symptoms from 1 week to 1 month as compared with those who have 6 months or more symptom duration.... Patients in whom diagnosis is made and operation is performed early in the symptomatic phase of carcinoma of breast have less advanced tumors and better survival prospects.Further, common knowledge and informed lay testimony can augment the opinion of medical experts concerning the relationship of delayed diagnosis and treatment to spread of cancer. Information about this causal relationship is widely disseminated. The general public accepts the causal relationship between delay in treatment and metastases; it understands the official and popular vocabulary of urgency stressing the imperative of early detection to prevent metastases. Indeed, this common knowledge is endorsed and encouraged by the medical profession itself. [Whether] such information is accurately absorbed by the average person or not, it can be used by the jury in their consideration of the existence and nature of injury.
One of the plaintiff's experts stated: "I have to tell you what everybody, including a layman knows—namely, that one can expect a complete cure of cancer with surgery only if the tumor is completely removed before it spreads to distant sites. The longer a malignant tumor remains in the body, the greater the chances of metastases." The use of common knowledge may be particularly apt in the cancer field. In a case such as this, the medical evidence as reflected by the experts, as well as that available through published medical literature and the common knowledge of the general public, serves to establish that plaintiff was at a greater risk of future metastases on account of the delay in receiving proper treatment.
The issue of whether a patient can be awarded damages for fear of increased risk of developing a recurrence of breast cancer caused by delay in the initial diagnosis was also addressed by the Alabama Supreme Court. A woman who discovered a lump in her breast underwent mammography. The radiologist interpreted the study as normal. Eleven months later the patient was diagnosed as having carcinoma. The patient subsequently sued the radiologist who had interpreted the initial mammogram, alleging negligence in missing the diagnosis. At the subsequent trial, an expert medical oncologist testified that he was "80% certain" that the cancer had not spread into the patient's lymph nodes at the time the initial mammogram had been obtained, but that because of the 11-month delay in diagnosis, the patient had been required to undergo mastectomy, chemotherapy, and radiation. He also testified that breast cancer had a higher rate of recurrence once it had spread into the lymph nodes. At the conclusion of the trial the judge granted a defense motion for a directed verdict of nonliability because the plaintiff had presented no evidence to show that she would not have had to undergo similar treatment if the carcinoma had been diagnosed 11 months earlier. On an appeal brought by the plaintiff, the Alabama Supreme Court reversed the trial court dismissal [7]:
This Court has previously held that the issue of causation in a medical malpractice case may properly be submitted to the jury where there is evidence that prompt diagnosis and treatment would have placed the patient in a better position than she was in as a result of inferior medical care. It is not necessary to establish that prompt care would have prevented the injury or death of the patient; rather the plaintiff must produce evidence to show that her condition was adversely affected by the alleged negligence.... While the facts do not establish that the plaintiff's cancer could have been prevented altogether if the defendant radiologist had rendered a prompt diagnosis based on a clearer X-ray, medical testimony suggests that the plaintiff's condition worsened as a direct result of a diagnosis based upon a substandard X-ray.
Fear of Developing Cancer
This article thus far has focused on the fear of a patient who has already been diagnosed with and treated for cancer who sustains a recurrence of the cancer.
Another kind of nonphysical injury is the fear of a patient who has never had cancer of developing cancer. In California a group of residents were awarded damages for fear that they would develop cancer in the future because of exposure to toxic substances and carcinogens in a landfill into which the Firestone Tire and Rubber Company had dumped toxic wastes. Affirming the award, the California Supreme Court acknowledged that, generally speaking, in the absence of physical injury or illness, recovery of damages for fear of cancer is allowed only if the plaintiff proves that the fear stems "from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that cancer will develop in the future" [8]. Nevertheless, pointed out the court, in certain situations a plaintiff who fears cancer that will eventually develop should be allowed to recover without having to prove that it is more likely than not that cancer will occur, so long as the plaintiff's fear is "serious, genuine, and reasonable."
The California Supreme Court went on to define "fear of cancer" as a phrase used to describe a "present anxiety of developing cancer in the future." The court explained that although some commentators consider the term "fear of cancer" synonymous with the word "cancerphobia," it discerned a distinction. According to the court, cancerphobia is a mental illness characterized by a recurring "dread of a cancer in the absence of objective danger." On the other hand, the simple "fear of developing cancer" is not a "mental illness."
The California Supreme Court then expounded on the fear of cancer and the basis for compensation [8]:
For public policy reasons, emotional distress caused by the fear of a cancer that is not probable should generally not be compensable in a negligence action.... [Generally], in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that as a result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure. The plaintiff must further show that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the fear of cancer.In some circumstances, a plaintiff may recover for emotional distress, unaccompanied by a physical manifestation of injury, even when the defendant's negligent conduct does not subject the plaintiff to a risk of physical injury or disease.... Almost without exception, courts have required, as a prerequisite to recovery...that the plaintiff establish "to a reasonable medical certainty"— or that it is "more likely than not"—that the plaintiff actually will develop the disease in the future. With respect to a claim for emotional distress involving fear of cancer, however, the majority of jurisdictions and legal commentators recognize that a "more likely than not" threshold standard is not applicable; rather, a plaintiff's likelihood of actually developing the feared disease simply is one relevant factor in assessing the reasonableness of his or her claim.... While there must be a reasonable connection between the injured plaintiff's mental anguish and the prediction of a future disease, the central focus of a court's inquiry in such a case is not on the underlying odds that the future disease will in fact materialize.... [If the] mental anguish resulting from the chance that an existing injury will lead to the materialization of a future disease...[and] anxiety are both genuine and non-trivial, a plaintiff ought not to be denied a recovery merely because the chance that the future consequence will develop is 49% rather than 51%. The "more likely than not" test is used to determine whether to compensate for the future consequence itself, not for the present fear of such a future consequence.
To summarize, the essence of the California Supreme Court ruling is that although to be awarded compensation for fear that cancer may occur in the future a plaintiff must usually prove that it is more likely than not that cancer will develop, in certain circumstances a plaintiff need prove only that the likelihood of developing cancer in the future is reasonable.
In a malpractice case that was unrelated but nevertheless could be applicable to mammography and breast cancer, the Pennsylvania Supreme Court focused on the jury's role in determining whether compensation should be awarded when the connection between the alleged negligence and the patient's claimed injury is unclear [9]:
The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case.
The court then offered the following hypothetic scenario [9]:
When a child is drowned in a swimming pool, no one can say with absolute certainty that a lifeguard would have saved him; but the common experience of the community permits the conclusion that the guard would more probably than not have done so, and hence that the absence of the guard has played a substantial part in bringing about the death of the child. Such questions are normally for the jury, and the Court may seldom rule on them as matters of law.
The analogy between the scenario painted by the Pennsylvania court and a radiologist's failure to diagnose a carcinoma on a mammogram can be easily drawn. If we substitute the phrase, "When a woman's carcinoma is missed on a mammogram" for "When a child is drowned in a swimming pool," and the word "radiologist" for "lifeguard," the court could well conclude that the absence of a mammographic interpretation of suspicious malignancy could play a substantial part in bringing about the death of a woman who succumbs to breast cancer.
Fear of Breast Cancer
As the court decisions described thus far have amply demonstrated, fear that cancer might develop or recur is a legally recognized patient injury for which compensation may be awarded. Women seem to harbor a greater fear of developing breast cancer than any other kind of cancer or disease. A recent editorial in The Lancet emphasizes this idea [10]:
Which disease kills the greatest number of women worldwide? Judging by the attention given to the disease in newspaper headlines and media campaigns, many women and men in developed nations might answer breast cancer.... They would all be wrong. In fact, heart attacks and strokes kill twice as many women as all cancers combined. Women are four times more likely to die from coronary heart disease than from breast cancer.
What is the origin of this unrealistic fear of developing and then dying of breast cancer? Why are jurors and judges so easily disposed to awarding compensation to women whose sole injury is a fear of developing primary or recurrent breast cancer? As has been pointed out previously, the answer to both questions seems to lie in the advertisements and marketing campaigns sponsored by segments of the medical community that have extolled and perhaps overemphasized the benefits of early detection of breast cancer by mammography [11, 12]. In a recently published article dealing with mammography, a Canadian researcher calls attention to American women who are "terrified of breast cancer" and "are frightened...[and harbor] fear based on hyperbole" [13].
Asserting that women are "ill-informed" about mammographic screening, the researcher concludes, "Physicians must let frightened women know that, even without screening, most women who get breast cancer will not die of it and that despite screening, some women will still die of breast cancer" [13].
Summary
At the conclusion of a medical malpractice jury trial, the jury must first decide whether the defendant physician was negligent. If it decides in the affirmative, the jury must then determine the extent of injury suffered by the patient and, finally, the size of the monetary award to compensate the patient for the injury. One study that followed medical malpractice lawsuits to their final resolution found that the indemnification paid to injured patients was directly related to severity of the damages sustained by the patients [14]. Typically patient "injury" is thought of in terms of physical injury, such as disfigurement, loss of limb, paralysis, or death. However, as has been discussed here, the injury may be psychologic in nature.
Juries award two kinds of compensation: economic damages, the purpose of which is to reimburse the patient for actual medical and maintenance expenses, both past and future; and noneconomic damages, the purpose of which is to reimburse the patient for pain, suffering, and mental anguish. The latter type of damages has risen exponentially in the past half decade. In Illinois, for example, from 1997 through 2002 jury awards for noneconomic damages increased 132%, whereas the dollars awarded for economic damages increased only modestly, in keeping with the single-digit rise in the consumer price index (unpublished data, Illinois State Medical Society).
Fear of developing cancer in otherwise healthy people, and fear of developing recurrent cancer in persons who have already been treated for cancer, is a recognized patient injury for which juries have awarded compensation. Women's fear of developing breast cancer is disproportionate to the actual likelihood of their developing breast cancer. Women's fear of developing recurrent breast cancer after they have been treated for the cancer and are apparently free of disease is disproportionate to the actual likelihood of their developing recurrences. Women's fear of dying from breast cancer is disproportionate to the actual likelihood of their dying from the disease. Women's beliefs that mammography will find all breast cancers and reduce the likelihood of or prevent dying from breast cancer is disproportionate to the actual reduction in breast cancer mortality rates attributed to screening mammography [15, 16].
The allegation of delay in diagnosis of breast cancer continues to be the leading cause of malpractice litigation lodged against all physicians in the United States, radiologists and nonradiologists alike [17]. The average award to a woman in whom breast cancer diagnosis has been delayed for 5 months or less is a remarkable $250,000. The extent of women's fears and the size of jury awards related to breast cancer and mammography appear to be directly related to misperceptions harbored by patients, jurors, trial court judges, appeals court justices, and even many physicians that early diagnosis of breast cancer by mammography is the sine qua non for breast cancer cure [18].
The continuing rise in the amount of noneconomic damages awarded by juries for a patient's pain, suffering, discomfort, and anger associated with fear of an increased risk of developing recurrence of breast cancer because of delay in diagnosis caused by an alleged misinterpretation of a mammogram may well be the consequence of these misperceptions. A bill proposed by President Bush, the Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2002, that would place a cap on noneconomic damages for emotional or personal claims such as pain and suffering, would clearly reduce and limit jury awards, but the bill has thus far been blocked in the United States Senate [19].
Educating the medical, legal, and lay communities in a meaningful way about the true limitations of mammography as it relates to the diagnosis and prognosis of breast cancer may not clearly reduce and limit fear of cancer lawsuits, but at least it would offer some hope of doing so.
References
CiteULike 
Complore 
Connotea 
Del.icio.us 
Digg 
Reddit 
Technorati What's this?
This article has been cited by other articles:
|
|
 |
|
  L. Berlin Tuberculosis: Resurgent Disease, Renewed Liability Am. J. Roentgenol., June 1, 2008; 190(6): 1438 - 1444. [Full Text] [PDF]
|
|
|
|
 |
|
 E. J CHURCH Legal Trends in Imaging: An Update Radiol. Technol., March 1, 2008; 79(4): 309 - 327. [Abstract] [Full Text] [PDF]
|
|
|
|
|
|
T. Dubinsky, J. W. Berlin, and L. Berlin Medical Malpractice in Relation to Mammography Am. J. Roentgenol., February 1, 2005; 184(2): 699 - 701. [Full Text] [PDF]
|
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
