A fifty-four year old woman was being followed by her gynecologist for routine visits. She had previously been treated for bilateral breast cancers successfully and had a strong family history of breast and ovarian cancer. She was seen from time to time by one of her doctor’s partners if he happened to be out of town. During one of those visits, based on her personal and her family history, the partner suggested she have genetic testing for the BRCA1 and 2 mutations, inherited conditions that predispose a woman to a high likelihood of getting breast and ovarian cancer as well as other cancers; and/or removal of her ovaries and uterus. She refused. There was a factual dispute about whether the partner ever mentioned the potential value of having her ovaries removed prophylactically so as to prevent her from ever getting ovarian cancer. There was a somewhat vague note in the chart about this issue, and the doctor and the patient had different recollections. According to her office chart her original gynecologist never mentioned either testing or surgery, although later on he couldn’t believe he had not.
Two years later she began having lower abdominal pain. A CT scan showed a complex ovarian mass. She underwent surgery by yet another gynecologist in the same group – at which time he removed a large ovarian cancer that ruptured at the operation. She was started on chemotherapy after the surgery to try to prevent further spread of disease that might have been too small to see at the operation, but after two chemo treatments she sought a second opinion from a gynecologist who specialized in the treatment of gyn cancers, a so-called gynecologic oncologist. He insisted on re-operating because he said that the original operation was not thorough enough.
In fact, most general gynecologists do not even attempt surgery on a woman strongly suspected of having ovarian cancer. At his deposition, the operating gynecologist stated that, despite the patient’s formidable personal and family history, he did not suspect cancer. At the second surgery, in which much additional tissue was removed, no further cancer was uncovered. She finished her chemo and has been fine ever since. She eventually acquiesced to testing for the BRCA mutations and tested positive for BRCA 2.
The Court Case
She sued her original gynecologist for not insisting that she have her ovaries out before she developed cancer. She did not sue the gynecologist who saw her once, and whose opinion she rejected nor, surprisingly, did she sue the other partner who performed the first inadequate operation.
I was retained by the defendant gynecologist’s lawyer to help prepare his defense. Clearly this woman was at high risk of having one of the BRCA mutations because of her personal history, her family history and her ethnicity (Ashkenazi Jews have a much higher prevalence of this mutation). The standard of care required her gynecologist to counsel her about her risk and offer ways to ameliorate this risk. In his deposition, he stated that, at the time, all of this took place (about 2004) he did not know how to go about getting BRCA testing done, although presumably could have found out. I found this explanation remarkable considering his field. I wondered upon reading his transcript how many other women at risk in his practice were never tested.
Much of the case hinged on her recollection of what he told her. The doctor recalled nothing specific. The chart indicated nothing was discussed. I could not help the doctor’s lawyer with the issue of who said what to whom. Had something been discussed and his recommendations refused, the doctor should have documented that thoroughly.
This case dragged on through the courts for years over procedural haggling so by the time it came to trial seven years had elapsed since her second surgery. At trial I told the jury that her cancer was cured and as such she did not sustain damage from any delay in removing her ovaries. In fact when one looks at survival curves for stage IC ovarian cancer (involvement of one or both ovaries with contamination of peritoneal fluid with cancer cells, as is seen with ovarian rupture) all of the excess mortality occurs in the first five years (see the accompanying chart at right). If by five years you haven’t died from this yet you are not going to. If you are alive and well at the end of five years statistically you are cured. The woman’s lawyer asked me on cross examination at trial what I should tell his client, who, despite my testimony, was frightened each day that her cancer would still come back. I replied that if she was worried about something it should be her next cancer, which in light of her BRCA 2 mutation could be stomach cancer, pancreatic cancer, malignant melanoma or colon cancer. Her previous cancer was gone.
The jury agreed with me and even though her gynecologist might never have advised her to have her ovaries removed she had suffered no injury on account of the cancer she didn’t need to get. The gynecologist was exonerated.
What is to be learned from this exercise in futility?
The plaintiff’s lawyer must have spent over $100,000 of his own money pursuing this case (the injured party typically does not front the expenses although in theory he or she should); the doctor’s malpractice carrier spent an equal amount defending it. Both the patient and the doctor were tied up in emotional knots for years worrying about the eventual outcome. She was well off; the money she could get in her home state, where malpractice awards tend to be small, would not have impacted her life style. The doctor had none of his own money at risk but did have his reputation on the line.
Had the defendant gynecologist kept better records, taken more time to explain her risks to his patient, or both, the suit could have been avoided. Had the surgeon who performed the first operation to remove the ovarian cancer given up the case to a more suitable gynecologic oncologist, some of the woman’s suffering would have been reduced. Had he been sued as well the case might have had a different outcome, for even with benefit of hindsight it is difficult to justify his surgical judgment. In my opinion not including him in the lawsuit was a major strategic error committed by an experienced personal injury lawyer who should have known better.
The plaintiff’s attorney knew all of the facts in the case ahead of time. There were no surprises uncovered during the depositions taken of the treating physicians or retained experts. One could hypothesize that he took the case years ago expecting his client to die of the cancer. When she did not his case lost its value. I never attempted to interview him after the fact although would have enjoyed finding out why he took the case in the first place. It is highly unlikely he would have agreed to talk to me.
Is there a further lesson to be learned from this misadventure?
There are four main lessons to be learned here. First of all, doctors need to keep transparent records. Usually thorough records help doctors in their own defense. Secondly, sometimes plaintiffs, like the patient in this case, expend tremendous emotional energy in a case instead of focusing on more important matters. This woman’s time could have arguably been better spent getting over her cancer and developing a strategy to deal with the next one – instead of in a courtroom. Thirdly, not every complication is a case for malpractice. In this instance, no one caused the patient to get the BRCA 2 mutation; it certainly wasn’t her doctor’s fault. Finally, it is almost certainly better to recover from cancer than to profit from the alternative.
+ Read more articles by Dr. Stark about the latest advances in cancer diagnosis, treatment, and litigation.
+ Find a Gynecologic Oncology specialist near you!
+ Look up other articles on Cancer Care topics.
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.