By Bonnie Rush, RT(R)(M)(QM)
It is well known that we live in the most litigious of societies, and in our imaging arena it is breast imagers that are at the highest risk for delay in diagnosis lawsuits. Leonard Berlin, MD, medical legal eagle and author of more than 300 ethics and liability articles, believed as far back as 2004 that the stage has been set for even a short delay in breast cancer diagnosis to be a cause for a malpractice suit.
Berlin advised in the title of one of his articles: “Screening Can Survive Malpractice . . . If Radiologists Take Center Stage and Assume the Role of Educator,” and they must also admit the “imperfections of mammography.”1 Despite ACR Council Resolution 41, adopted in 2002, indicating the College should develop and undertake a campaign to explain to the public both the benefits and the limitations of mammography, Berlin further stated, “I have never seen any evidence whatsoever of any radiologist or radiologic organization publicly educating women, or even non-radiologic physicians, about the imperfections of mammography.”1 His advice has still not been followed. In fact, just the opposite has occurred, and mammography has consistently been defended against all naysayers and is still touted as the earliest form of detection for all women.
Fast-forward to Ohio 2011 – a precedent was set with the first malpractice case won for both physical and emotional injury for lack of early stage diagnosis by mammography. The ruling declared that “emotional turmoil related to advanced cancer diagnosis met the definition of injury, and the growth of breast cancer caused a physical injury not just a physical change.”2
Fast-forward again to 2014 and consider the impact of the grass roots movement for dense breast notification, which has passed in 19 states and is in the legislative maze in several more, with a National Bill also recently introduced. These bills infer a direct relationship to density as a risk for later stage detection based on the weakness of mammography – attenuation of the beam by dense tissue. Attorney Ellen Kelleher, whose cancer was missed by mammography, brought the issue of dense breast tissue and delayed diagnosis to her Massachusetts legislature but tragically died in 2013 before its passage on June 26 of this year. The bill was carried to passage by the Massachusetts Coalition, which included Ellen’s husband Damian Musello and Ellen’s attorney colleagues, along with other MA residents & dense breast tissue advocates.3 Is there a lawsuit in the works? Only time will tell, but the players are falling into line.
With over 50% of our population now in states that have passed notification legislation, it can be construed as the establishment of a new standard of care to inform. Legal carnivores can use our own AMA Code of Ethics to define our obligation even if our state does not have a notification law:
- Physicians should sensitively and respectfully disclose all relevant medical information to patients
- Patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice
- Physician’s obligation is to present the medical facts accurately to the patient
- Physician has an ethical obligation to help the patients make choices
This topic was presented in 2015 at the AHRA Annual Meeting on Monday August 11th for “Finding Waldo and Decreasing Legal Liability – A Breast Density Update,” a fast paced and informative presentation which addressed the legal implications of breast density and aided in developing strategies to keep the legal carnivores from nipping at your center’s screening program due to mammography’s Achilles heel.
References:
1. Berlin L. Mammography Screening Can Survive Malpractice … If Radiologists Take Center Stage and Assume the Role of Educator. Radiology 2004; 233:641–644
2. Millburg S. Court OKs ‘anguish’ lawsuit over mammogram. Radiology Daily. 2011. Available at: http://www.radiologydaily.com/daily/breast-imaging/court-oks-anguish-lawsuit-over-mammogram/. Accessed July 17, 2014.
3. Mass. governor signs breast density bill into law. AuntMinnie.com.. 2014. Available at: http://www.auntminnie.com/index.aspx?sec=sup&sub=wom&pag=dis&ItemID=107840. Accessed July 18, 2014.