Lawyers all over the country are stalking physicians alleging medical malpractice, whether those physicians are negligent or not. Is anyone going to stop them?
Sickness and disease are in the cards for many of us, and death is inevitable. At times, though, any one of those can be promulgated by the negligent actions of a physician, say leaving a surgical instrument inside a patient, or cutting off the wrong limb. Then, there is no doubt in anyone's mind that the physician must be held accountable - a legitimate medical malpractice case.
However, the norm in this country is for lawyers to bait unsuspecting potential clients into becoming plaintiffs against any in the medical establishment who could have possibly caused harm to that client, or a loved one. What lawyers don't say, though, is that medicine is not an exact science. But lawyers and the media have brought the public's expectation of medicine up so high that physicians and healthcare practitioners are held to a perfect standard of care they cannot possibly attain, but are expected to.
Along with ob/gyns and surgeons, radiologists are fast becoming an integral part of this lawsuit trend, with failure to diagnose breast cancer on mammography being the most frequent modality in lawsuits claiming malpractice against them. How can that be, especially when mammography can have up to a thirty percent miss rate? Because it is an extremely lucrative undertaking, and breast cancer is a very emotional issue. Add together a young woman in her prime diagnosed with a fast growing breast cancer, a lawyer who convinces her that the cancer should have been caught on a mammogram, a smooth-talking expert witness for the plaintiff, a sympathetic jury, and you have a million-dollar verdict. There is a medical liability crisis in this country, one that is fast getting away from us, and mammography is headed toward being one of its casualties. Because of the threat of malpractice litigation, high liability insurance costs, and low reimbursement, radiologists are refusing to read mammograms, and radiology residents show no interest in specializing in breast imaging.
Though breast cancer has been around for thousands of years, mammography is fairly young. Through the years, breast imaging has matured into an all-inclusive evaluation from a simple clinical assessment. But mammography is still fallible - miss rates are documented up to thirty percent. In court cases, the jury is not always told this fact. Or if it is, it is downplayed by the plaintiff attorney. Breast cancer is not an easy disease to explain or diagnose, and reading a mammogram comes with its own innate difficulties. Breast cancer is not just one disease, but many; and the reasons for contracting it are varied. For example, in a court case, a lay jury does not know that younger women have denser breasts and cancer grows faster, though the risk of getting it is less. As a woman ages, her risk increases, her breasts are less dense, and the cancer tends to be slower growing. As with anything else in medicine though, this is not set in concrete. There are exceptions to rules. For instance, an older woman can have dense breasts and her breast cancer can be fast growing.
What else is a jury expected to understand? Microcalcifications, asymmetry, Axillary Tail of Spence, hindsight bias, lead-time bias, interval cancers, dot-size. Besides that, listening to opposing expert witnesses telling them what the standard of care should be for that particular case. In essence, we have a lay jury deciding whether or not a physician is guilty of medical malpractice, if his actions have fallen below the standard of care, all the while being expected to understand what it took the physician years to learn. In addition, you can have the same case tried in two different localities and have opposite verdicts. Lawyers thrive on this type of lawsuit. But are these lawsuits deterring legitimate negligence? Not nearly. After the case is tried, even if the verdict is for the plaintiff, there is no remediation for the "negligent" physician. Just an exchange of money. There is no understanding of why something happened.
Mammography does not cure or prevent breast cancer. Though it is the only tool we currently have available for the detection of breast cancer at its earliest and most treatable stages, it has limitations. Why? Because of not only the woman's history, and the characteristics of her breast cancer, but the radiologist's experience and perception, image interpretation, etc. Radiologists themselves will disagree on the interpretation of the same screening or diagnostic mammogram. Dr. Mark Klein of Washington, DC, says that it is documented up to 67 percent of mammographically detected breast cancers are visible in retrospect (the concept of hindsight). However, this does not point to incompetence; it is a limitation of the technology.
So where do we go from here? There are several tests for diagnosing breast cancer that look promising. For example, MRI is currently being studied. However, it is not considered a screening test, but used in conjunction with computer-aided diagnosis (CAD). It also does not always distinguish correctly the difference between benign and cancerous conditions. PET scan can identify invasive ductal carcinoma, but can miss invasive lobular carcinoma. It also does not identify non-invasive tumors well.
It's a money thing. And, as in many arenas, education is the key. The public has to be informed, as well as educated. But unless we are personally involved as a plaintiff or a physician defendant, being human we don't usually care. It won't be an easy task. Plaintiff trial lawyers vigorously defend this system in the guise of protecting those who are "victims" of medical malpractice. It's pervasive. Go to http://www.classaction.com. You will see lawsuits involving the drugs Accutane, Bextra, Paxil, Vioxx, and Zyprexa, as well as the Guidant and Medtronic defibrillators, the Logitech mouse, nursing homes, air, soil, and ground water contamination, body parts and defective products. Nothing is sacred to plaintiff trial lawyers. Surveys have resulted in half the doctors responding that they have been named as a defendant in a medical malpractice lawsuit. Are they all negligent?
Tort reform is part of the answer. But it also encompasses various elements like the loss of chance doctrine, and the laws governing them are different in every state. And trial attorneys have a powerful lobby against tort reform, because the rewards are great. In his recent State of the Union Address, President Bush said doctors and nurses must be put back in charge of American medicine, instead of those in charge now – bureaucrats, HMOs, and lawyers. He urged Congress to pass medical liability reform because one of the major causes of the high cost of health care is the threat to physicians of medical malpractice litigation. He's right, no matter what trial lawyers try to bamboozle the public into believing. It's not just up to Congress, though. It is every citizen's duty to be a part of constructive political change. That is not always the case though, because Americans tend to overlook serious matters unless an issue emerges up close and personal.
Change is inevitable, and technology is such that someday there will be a substitute for mammography. Radiologists may disagree when, where, or how this will happen, but most agree that right now mammography is still the only tool available to diagnose breast cancer early enough to be treated, and we need to save it from extinction.
Rene' Jackson RN BSN MS
Freelance Health Writer
Port Charlotte, FL
AHCJ Member
"The Death of Mammography"
Rene' Jackson RN BSN MS
Alberto Righi, MD
Caveat Press 2006
View the WFLA TV 8 News Interview Aired March 1, 2006:
[http://multimedia.tbo.com/multimedia/MGBLK9K3AKE.html]
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and excerpts from the book at:
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