PHILADELPHIABreast cancer is the most frequent
misdiagnosis leading to professional liability litigation, and the
most common breast cancer malpractice lawsuit is for
misdiagnosis, Kenneth Kern, MD, said at a 47th Annual Clinical
Meeting of the American College of Obstetricians and Gynecologists
(ACOG). Furthermore, failing to detect breast cancer is among the top
three law-suit-causing diagnostic errors made by internists,
radiologists, general surgeons, OB-GYNs, and family practitioners,
said Dr. Kern, of the University of Connecticut School of Medicine
and Dartmouth Medical School. Dr. Kern derived these conclusions from
several databases, including the NCIs SEER (Surveillance,
Epidemiology and End-Results) Program, the Physician Insurers
Association of America Data Sharing Reports, and the US Civil
Among plaintiffs claiming misdiagnosis of breast cancer, the subgroup
suing because of diagnostic delay has clear characteristics, Dr. Kern
said. Their triad of characteristics include a false-negative
mammogram, a self-discovered breast mass, and young age.
Between the age when a cancer commonly occurs and the median age of
malpractice litigants lies an age differential that Dr. Kern called
the litigation gap. It ranges from 8 years in male
reproductive cancers to 27 years in female reproductive cancers.
Seventy-five percent of all breast cancer patients filing
diag-nostic-delay malpractice suits are under age 45 (median,
42), he noted.
An uncommonly young age for cancer is also the most frequent factor
in misdiagnosis lawsuits involving eight other cancers: cutaneous,
gastrointestinal, head and neck, lung, male reproductive, female
reproductive, musculoskeletal, and urologic, Dr. Kern added.
In the triad of characteristics common to these misdiagnosis
lawsuits, a false-negative mammogram is not a particularly surprising
element. Its almost random whether you will see something
or not on a mammogram for a woman under 50, Dr. Kern said,
adding that physicians typically support settling these cases out of court.
In almost 75% of breast cancer misdiagnosis suits, physicians found a
palpable mass on initial presentation, but subsequently performing
mammography still left them open to a substantial risk for
misdiagnosis and lawsuits.
About half of misdiagnosis lawsuits involve a negative
mammogram with palpable mass present, Dr. Kern said. Yet
attempts at diagnosis beyond mammography are virtually nonexistent.
Physicians are lulled into the misdiagnosis of breast cancer by the
young age of patients and false-negative readings of mammography, not
by vague findings or difficult diagnostic situations.
To reduce their exposure to lawsuits when patients present with
palpable findings and negative mammograms, Dr. Kern advised
physicians to make liberal use of fine-needle aspiration biopsy,
large-core biopsy, or open surgical biopsy.
Dr. Kern noted further that with the media attention given the breast
cancer prevention conferred by tamoxifen (Nolvadex) in recent trials,
patients are spontaneously asking, At what level of risk do I
need tamoxifen? To answer that question, Dr. Kern suggested use
of widely available risk calculators, such as the risk
disk, distributed by Zeneca and others. ASCOs Special
Working Group, in its Technology Assessment Report, concluded that
women age 35 and older with a 5-year cancer risk of 1.7% or higher
may be considered tamoxifen candidates, based on all available
literature from 1990 to 1998.