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 end.