Mammography is without doubt the most important diagnostic tool in detecting early-stage breast cancer. Studies have repeatedly shown a decrease in mortality rates among women who are screened for the disease at intervals of at least every two years. Some studies show the decrease to be as high as 50%.
Yet some U.S. physicians are growing reluctant to order these life-saving tests, and many radiologists do not wish to specialize in reading them. One-third of practicing radiologist have considered leaving the specialty. This phenomenon is often attributable to fear of medical malpractice suits, which have become common in “failure to diagnose” breast cancer cases.
Medical Malpractice Lawsuits and Breast Cancer
In general, a prima facie case of medical malpractice may be established if the following elements are present:
- a duty of care to the patient
- breach of that duty
- causation, both “in fact” and proximate
- damages (compensation for either economic losses and/or non-economic harm)
Proximate causation involves an analysis of whether or not a doctor’s failure to detect a tumor is sufficiently related to the harm suffered by the plaintiff; or whether some superseding, independent cause that results in unforeseeable consequences is actually to blame. For more satisfaction, one can consult to Restraining Order Lawyer to get clarification of the matter.
If the doctrine of res ipsa loquitur (“the thing speaks for itself”) is available, negligence may be inferred even in the absence of direct evidence thereof.
Plaintiffs often seek monetary damages for “loss of chance,” which represents their possibly decreased rate of cancer survival because of the failure to detect. This theory has developed somewhat differently in various state courts, but the burden of proof is always on the plaintiff.
Negligent infliction of emotional distress constitutes another type of claim, which does not require actual physical harm to be suffered by the plaintiff. Rather, it is based on the intense psychological trauma caused by fear of breast cancer.
Percentage of Breast Cancers Missed by Mammography
The percentage of tumors missed by radiologists may be as high as 40%, according to Dr. Mark Klein of Washington, D.C. This number is not necessarily due to gross or simple negligence, however. Factors such as breast tissue density and tumor size and type play a significant role as well.
Moreover, it is possible to receive a clear mammography result and develop cancer immediately thereafter. By the time the next test is performed, the malignancy may have progressed to a relatively advanced stage.
Medical Malpractice Suits Hinder New Technologies
Computer-assisted detection systems aid radiologists in discovering cancers by providing a “second pair of eyes.” They may be used with breast MRI as well as in ordinary X-ray mammography. CAD consistently increases the rate of detection to above 90%, no matter how small the tumor or what type of malignancy is present.
Fear of lawsuits has stopped the widespread use of this technology. Radiologists worry that the percentage of false positive results will increase their exposure to greater risks of liability. Their perception of risk is greater than the facts indicate, however; they think the risk of lawsuits is about four times higher than it actually is, according to studies performed during the last twenty years.
Tort Reform and Mammography
Missed breast cancers have horrendous effects on patients and their families. Many juries award huge amounts of punitive damages in such cases. People expect physicians to be perfect and misinterpret glowing media reports on mammography as indicating that it is some sort of miraculous cure-all, instead of the helpful diagnostic tool it really is.
Currently, tort costs in the U.S. grow annually at a rate of almost 12%. Victorious plaintiffs receive less than 50% of overall damage awards, and less than 25% of economic loss awards. Caps on damage awards have been frequently proposed: $250,000 for suits against individual doctors and $500,000 for hospitals involved in pain-and-suffering cases.
Economic and punitive damages are not affected by such caps. Many states, including Ohio and Texas, have implemented such reforms already. Another interesting idea concerns the establishment of health courts, much like specialized tax or bankruptcy courts, which would be presided over by medically-knowledgeable judges.
The American Tort Reform Association and the American Trial Lawyers Association hold diametrically opposing views on the subject. A balance must be struck between “making plaintiffs whole” with damage awards and realizing that not all cancers will be detected at a stage early enough to make it possible to save a patient’s life. The continued failure to strike such a balance will inevitably result in further fear, confusion, unrealistic expectations, skyrocketing insurance rates, and an eventual devastating impact on women’s healthcare and cancer survival rates.