Cancer Care and Malpractice Litigation: Should I Sue?

James Stark, MD, of Stark Oncology

James Stark, MD, of Stark Oncology

Although the diagnosis of cancer strikes fear in the hearts of the newly affected, most people, bombarded by the media with news of advances in treatment, believe that with the proper care they can be cured.  So what happens if things don’t go well and the person dies?

At some point a family member may begin to wonder whether more could or should have been done.  This feeling may eventuate in a visit to a lawyer to see whether the doctor or doctors caring for the decedent should have provided better care. Sometimes there was an error but not what the family thinks.

Some cancers are so lethal that it doesn’t matter when the diagnosis is made: the results are destined to be bad.  Some cancers are so well behaved that the afflicted can be saved even after mismanagement.  The cancers in the middle can be the litigation battleground.

The biggest culprit in a bad outcome for patients with curable cancer is delayed cancer diagnosis.  Sometimes the patient knows something is wrong and procrastinates.  Sometimes the doctor through ignorance or inattention misses the diagnosis when it should have been obvious.   Sometimes the cancer was there to be found before the first symptom but no testing was done.

Why should you test someone who has no symptoms?  That’s the basis for cancer screening, e.g., mammography, Pap smears and colonoscopy.  There are robust data for those three cancers that screening saves lives because you find the cancer when it is still highly curable.   What about the primary care doctor who, through disorganization, inattention or lack of conviction, fails to screen his patients for cancer in the face of these data?  One can argue that this is a legitimate issue for litigation over a bad cancer outcome.

So should there be a lawsuit?
Arguably, if ever there is justification for suing a doctor for a bad cancer outcome, this is it – delayed diagnosis because no screening was ever done.  Other than physician education what can be done about this?

In this era of widespread dissemination of information patients arguably know that they should be screened for cancer.  Sometimes a patient needs to be his own advocate.  This does not obviate physician action but can help steer the doctor in the proper direction.

We live in an era of computer assistance (or intrusion) in the practice of medicine.  This is one area where the computer could actually be the doctor’s friend: reminding him that he has forgotten to screen his patient for cancer.  In practice most widely used electronic medical record software does not remind the doctor that he has forgotten to screen his patients for curable cancer.  Is there a better use for the electronic record?  None that I can think of.  A recent New England Journal of Medicine editorial (NEJM 365:1756, 2011) made the same point: the EMR is not designed to enhance patient safety.

In coming weeks stay tuned for other aspects of cancer litigation.

+ Read more articles by Dr. Stark about the latest advances in cancer diagnosis, treatment, and litigation.

Dr. James Stark is the founder of StarkOncology, where he practiced Oncology in Hampton Roads for thirty-four years.  He is now a health-care consultant specializing in topics such as breast cancer, colon cancer, lung cancer, chemotherapy complications, and failure to screen. In addition to this new venture he continues to serve as Professor of Medicine at Eastern Virginia Medical School.

Speak Your Mind