Malpractice Claims Target Breast Cancer Specialists

The climate for medical malpractice litigation in breast cancer treatment seems to be worsening, with “designer lawsuits” linked to imaging and genetic tests among the emerging trends, according to Patrick I. Borgen, MD chairman of the Department of Surgery and director of the Brooklyn Breast Cancer Program at Maimonides Medical Center in Brooklyn, New York.

“Failure to diagnose breast cancer accounts for about 40% of all medical malpractice suits filed,” said Borgen, a widely published author and editor.

He said allegations of a delay in diagnosis of breast cancer is the number 1 basis for medical malpractice lawsuits and the second most expensive generator of liability claims against physicians.

Borgen identified these allegations as emerging areas of litigation:

• Failure to prevent breast cancer
• Failure to identify genetic risk factors
• Failure to use available technology to determine ideal treatment
• Breast cancer caused by hormone replacement therapy

He also said plaintiffs are showing an increased interest in genomic profiling in cases where complications arose after unnecessary chemotherapy.

“What’s driving this today more than anything else is unrealistically high expectations,” Borgen said.

Often, these expectations are fueled by simplistic media reports that fail to convey the complexities of breast cancer or the limitations of clinical studies, Borgen said. For instance, he cited research showing that 57% of women over 40 years old believe getting a mammogram reduces their risk of breast cancer.

Borgen said oncologists could take steps to prevent malpractice suits, such as controlling their practices, maintaining documentation, and managing a patient’s anger at her condition. He also suggested that physicians could be more selective about the patients they treat.

Above all, he said, oncologists must manage expectations about treatment outcomes—their own expectations and those of their patients.