Hereditary Cancer Litigation: A Status Report

February 1, 1996
James R. Brown, MD, JD
James R. Brown, MD, JD

Volume 10, Issue 2

The issues, cases, decisions and situations discussed by Severin indicate that, fortunately in one area and unfortunately in another, the more things change, the more they stay the same. Furthermore, his article raises an important medicolegal policy issue.

The issues, cases, decisions and situations discussed by Severinindicate that, fortunately in one area and unfortunately in another,the more things change, the more they stay the same. Furthermore,his article raises an important medicolegal policy issue.

With regard to what stays the same, I note that what I learnedas a medical student in the late 1960s, and what I then taughtmy interns when I was a resident and my residents when I was anassociate professor of family practice, still is the mainstayof effective clinical medicine: A thorough and thoughtful historyand physical examination performed by the attending physicianremains fundamental to the timely and proper diagnosis and treatmentof patients. An accurate family history, which has been taughtto medical students from time immemorial, is still the bedrockof diagnosis of not only the complaining symptoms but also potentialhereditary, familial, and genetic conditions.

Short-Sighted View of Insurers

That which also, unfortunately, remains the same is the apparentshort-sighted view of the insurance companies. Rather than authorizingand reimbursing indicated prophylactic surgery, it appears thatthe companies plan to test in every state the question of whetherfamily cancer syndromes and similar conditions constitute "disease"states that are compensable under the various health contracts.

I find it frustrating that the insurance companies remain outsidethe health care "loop" and prefer to expend their fundson litigation rather than indicated prophylactic care of patients.Moreover, if the indicated surgeries are not completed now, itis clear that the insurance companies will later be paying formuch more expensive (and preventable) radical surgeries, chemotherapy,and numerous hospitalizations. Thus, given the large number offamily cancer syndromes that have been recently described, theinsurers' view is not only medically short-sighted but also notin their own long-term financial interests.

An Important Policy Issue

Finally, the policy matter that affects patients, their families,physicians, and attorneys (for both plaintiffs and insurance carriers)is the following: What responsibility does a physician owe tothe family of a patient in whom he or she has diagnosed a familialcancer or other familial condition? It is hoped that the organizedmedical and legal professions, along with the other members ofthe health-care industry, such as the insurance carriers, HMOs,and PPOs, will cooperate in formulating proper mechanisms forprimary-care physicians to inform nonpatient relatives of theirpotential for developing genetic-based illness in a speedy, economical,and, hopefully, nonlitigious manner.