MIAMI BEACH, Fla--Breast cancer litigation is "a world whose
activity is sometimes built upon old science, no science, or junk
science," said Kenneth Kern, MD, of Hartford Hospital and
the University of Connecticut School of Medicine, Farmington.
In a presentation at the 12th Annual International Breast Cancer
Conference, Dr. Kern offered the audience a "road map"
for entry into that world.
Breast cancer has been the focus of litigation in many different
forms for more than 100 years, he said, and today half of all
malpractice suits for delay of diagnosis involve breast cancer.
In his "deconstruction" of the breast cancer litigation
problem, Dr. Kern described four time periods: First, an era of
"traumatic" breast cancer from 1900 to 1950; then from
the '50s to the '60s an era of technical misadventures; from the
'60s to the '70s, an era of diagnostic delays; and today the era
of loss of chance for survival.
In 1897, there were some 2,000 scientific articles stating that
cancer was caused by acute trauma, Dr. Kern said. In 1910 a British
study found 500 breast cancers that were preceded by an acute
injury, and cancer, particularly breast cancer in female workers,
became a legally compensable event in the workplace.
The United States followed suit in 1910, at which time 40% of
breast cancers were said to be initiated by acute trauma. The
reasoning was that acute trauma activated a microorganism that
caused the cancer.
Eventually, medical knowledge advanced and these traumatic breast
cancer cases ceased sometime in the 1950s. For the next decade,
most breast cancer lawsuits involved technical misadventures relating
to misread pathology.
Patients occasionally underwent single step radical mastectomies
for what turned out to be benign disease or a different disease
altogether. As the number of skilled pathologists increased and
two-step surgeries became more common, this era too came to an