NEWS

High Expectations for Mammography At Heart of Many Breast Cancer Malpractice Cases

Judith Randal

Insurance claims made on behalf of neurologically impaired newborns have long been notorious for causing the greatest financial grief for American medical liability insurers. Less known is that claims generated when screening mammography misses a breast cancer—thus presumably delaying its diagnosis and treatment—are consistently in second place.

Part of the reason is that the growth of screening mammography has been so phenomenal since its infancy in the 1960s that there are now more than 31 million of these examinations performed each year in the United States. Whereas this U.S. Food and Drug Administration statistic speaks to the success of many professional and advocacy groups in popularizing mammography, the most frequent defendants in breast cancer malpractice suits are the radiologists that analyze mammograms, according to the Physician Insurers Association of America (PIAA).

Also telling is another finding from the PIAA: 41% of breast cancer-related malpractice claims have been decided in the plaintiff’s favor. This is a far higher rate than the 29% paid out for medical malpractice claims as a whole, and it has left some radiologists faced with staggering increases in the cost of their liability insurance. In other words, despite the fact that the sums awarded to breast cancer plaintiffs have tended to be relatively modest as medical claims go—typically less than $500,000, the PIAA reported—they turn out to be expensive in the aggregate.

(The PIAA—a membership organization of companies that provide liability coverage to more than 100,000 U.S. physicians—has periodically issued reports, based on its members’ data, which are thought to reflect the U.S. breast cancer malpractice landscape generally. Much of the data reported here was drawn from the most recent of these reports, published in 2002.)

These statistics come at a time when the baby boom generation is aging and the number of women eligible for screening will continue to grow. So experts have been paying considerable attention to ways to improve mammography, in particular, digital mammography and computer-aided detection. (Digital mammography refers to the way the breast images are stored, and computer-aided detection refers to software programs designed to identify suspicious areas whether the images are digitally produced or captured on film with conventional equipment). So far, however, digital mammography has been shown to be more expensive but not clearly more accurate than film mammography. Although early studies found that computer-aided detection improved the cancer detection rate, a large and more recent study did not bear that out (see Journal, Feb. 4, Vol. 96, No. 3, p. 185).

With no quick technological fixes on the immediate horizon, there is a lot of enthusiasm for Bush administration proposals that would curb malpractice awards by limiting compensation for pain and suffering. Still, there are some who—regardless of their feelings about those proposals—think that the real problem is that the public has been led to expect too much of screening mammography.

Among them is Leonard Lucey, J.D., an attorney at the American College of Radiology, Reston, Va., whose areas of expertise include how issues of quality and safety relate (among other things) to liability insurance. He acknowledged that steep increases for malpractice coverage have contributed to the closure of some U.S. mammography centers, and he blamed much of the increases on screening’s effectiveness being "oversold."

Leonard Berlin, M.D., a radiologist at Rush North Shore Medical Center in Skokie, Ill., alleges that screening mammography’s enthusiasts are largely responsible for its legal woes—that by failing to publicly acknowledge the technology’s shortcomings, they have "shot themselves in the foot." Berlin has written about the topic extensively in peer-reviewed journals and has even gone so far as to call a talk he often gives at professional meetings "Breast Cancer, Mammography, and Malpractice—A Hapless Triad."



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Dr. Leonard Berlin

 
In his view, the trouble starts with the much publicized figure that for every eight or nine women in the United States, one will develop breast cancer. Breast cancer risk is tightly linked with age, and the statistic is rarely presented in the context that "one in eight" represents a woman’s risk over a lifetime. Berlin deems that often misquoted statistic as "scare tactics," adding that developing breast cancer does not necessarily make it fatal.

Moreover, the federal Medicare and Medicaid programs, as well as many managed care organizations and mammography facilities, promote screening as "preventive care," which leaves room for mammography to be interpreted as a way to avoid getting breast cancer, rather than just finding it—an interpretation that Berlin says is alarming.

Still, screening mammography is touted to women on the twin premises that early detection is key to surviving breast cancer and that women can rely on these examinations to provide that detection. So when the tests fail to perform as advertised and delay the diagnosis, it is hardly surprising that the patient may blame the radiologist and decide to sue. Yet the fact is that both premises are questioned in some quarters.

"We don’t tell the public this," Berlin said, "but any radiologist familiar with the mammography literature knows that up to 75% of breast cancers can be seen in retrospect on films that were read as normal. In other words, screening probably misses about 25% of small tumors and thus is not unfailingly accurate."

Similarly, he added, "a lot of women are convinced that every day they are sitting there with a breast cancer means that they are going to die that much sooner, but it, again, doesn’t work that way. In the vast majority of cases, a delay in diagnosis of 5 or 6 months doesn’t affect the prognosis and (because of varying interpretations of the data) we’re not sure that even longer delays change the outcome most of the time."

He pointed out that, depending on the study, 20% to 40% of breast cancers found by screening mammography are ductal carcinomas in situ (DCIS), and that at least 60% of them do not go on to become invasive and life-threatening. "If we had a way to ‘tell the bad actors,’ it would be one thing," he said. "Unfortunately we don’t, with the result that [most women] with a DCIS are treated aggressively anyway."

Berlin said he wishes the breast cancer community in general and the radiology community in particular would publicly acknowledge mammography’s limitations. That same opinion was recently expressed by Michael Baum, M.D., professor emeritus of surgery at University College London and now a visiting professor of medical humanities there. Baum devoted almost 30 years of his career to breast cancer and set up Britain’s first screening center in 1988.

"I am neither for nor against screening, but I am a passionate champion of informed choice for women," Baum said in a recent article on the news site Spiked Online (http://www.spiked-online.com). "For an informed choice, women should be ... provided with balanced information, not with propaganda."



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