Litigation and Colorectal Cancer

A recent four-part article in Esquire magazine describes the events in the life of a 43-year old man with rectal cancer. Early in the article the patient is referred for sigmoidoscopy because of rectal bleeding. He states ``. . . I'm still angry, I realize through late-night sobbing, at the doctor who shall remain nameless, for now, who calls himself a gastroenterologist but did not, four to five months ago (after Dr. Wong's bloody finger and recommendation of a sigmoidoscopy), perform even a digital rectal exam that should have discovered this two-inch-long `locally invasive' tumor. Laziness? Maybe. HMO pressures to see too many patients per hour? Doubt it. The asshole didn't see fit to look in mine, as most competent gastroenterologists would suggest.''[1] In this example, there was a delay in diagnosis even though the patient described symptoms suggestive of rectal cancer. It is of no importance whether this delay was due to the false negative digital rectal exam or to assumptions made based on the patient's young age. The patient is obviously angry and the chance of a lawsuit is high.

There are three broad categories of lawsuits that are related to the treatment of colorectal cancer. The largest category is failure to diagnose a cancer. In a review of the cancer prevention practices of primary care physicians, it was found that colon cancer screening had the lowest level of physician compliance of all the screening tests. Only 19% of primary-care physicians have a reminder system for sigmoidoscopy, compared with 33 to 45% for other cancer screening tests.[2] In addition, 89% of physicians recognized a consensus for mammography for women older than 50 but only 29% recognized the consensus for colorectal screening tests for asymptomatic individuals 50 years of age and older. Screening for colorectal cancer is further hindered by the fact that the cost of sigmoidoscopy is greater than reimbursement costs in some areas.[3]

In a review of 151 closed, paid colon cancer cases, collected and reported by 28 member companies, a total of 35.4 million dollars was made to indemnity payments, an average of $243,373.[4] Young patients are disproportionately represented in number and amount of the award. The review showed that 32% of patients were under age 50 but their award represented 52% of total indemnity payments. In fact, 28 cases (19%) of patients were under age 40 and accounted for 34% of total indemnity paid. In 97% of the cases, the physician contributed to a delay in diagnosis (cases often had more than one reason for the delay). The most common single cause for delay (52% of cases) was the failure to perform an endoscopic procedure. In this review, 73% of all cancers would have been initially diagnosed by sigmoidoscopy.

Failure to detect colorectal cancer, once an appropriate test has been ordered, is the second most common cause of litigation. The risk of missing a polyp or cancer during endoscopy is reported to be approximately 10%.[5] The risk of failing to detect colorectal cancer is not limited to physicians who perform endoscopic procedures. In a review of medical malpractice claims associated with radiologic colon procedures, 18 of 38 cases were due to failure to diagnose cancer and most of these were in the rectum or rectosigmoid area.[6]

The final area of litigation relates to the failure of a physician to inform patients about the risk of colorectal cancer and the need for appropriate screening. The obligation to inform extends not only to the patient but also to family members of patients in certain cases. In a classic case, Trumen v Thomas, a woman refused a PAP smear despite several requests by her physician to perform one.[7] She declined because she did not have the money to pay for a PAP smear. Later she was discovered to have cervical cancer and sued her doctor for failing to make a timely diagnosis. The doctor argued that the patient had refused testing. The court, however, found the doctor negligent for failing to inform the patient that he wished to do the PAP smear to screen for cervical cancer. It was the opinion of the court that the patient's refusal was not informed.[8] It is reasonable to assume that physicians, based on this logic, will be vulnerable to litigation if they do not clearly inform patients about the need for colorectal cancer screening and document their discussion.

Some forms of colon cancer pose a significant risk for family members. In Safer v Estate of Pack, the court held that a physician was potentially liable for failing to warn the family members of the hereditary nature of Hereditary Non-Polyposis Colon Cancer and the need for colonoscopy.[9] In this case, it was the opinion of the court that the risk to the family was great and exceeded even the need for patient privacy.

A review of 300 litigated cases related to ``failure to diagnose'' breast cancer reported three common characteristics of the plaintiffs: the women were young, the masses were self-discovered and the mammogram was negative.[10] Physicians seeking to avoid litigation could apply similar guidelines to colorectal cancer screening. Asymptomatic patients should be encouraged to have screening based on their age and individual risk factors. Symptomatic patients must be taken seriously and offered appropriate testing, even if they are younger than the mean age for colon cancer. Finally, it is important to remember that all screening tests for colorectal cancer have a small but significant false negative rate. If a patient has persistent symptoms after an initial diagnostic test is negative, consideration should be given to repeating the test.

REFERENCES

• 1 Pesmen C. My cancer story (part one).  Esquire . 2001;  135(5) 161
• 2 Costanza M E, Hoople N E, Gaw V P, Stoddard A M. Cancer prevention practices and continuing education needs of primary care physicians.  Am J Prev Med . 1993;  9(2) 107-112
• 3 Lewis J D, Asch D A. Barriers to office-based screening sigmoidoscopy: does reimbursement cover costs?.  Ann Intern Med . 1999;  130(6) 525-530
• 4 Connecticut Medical Insurance Company. PIAA Closed Claim Studies: Breast Cancer and Colon Cancer Results.  Conn Med . 1992;  56(4) 207-209
• 5 Wagner J L, Tunis S, Brown M, Ching A, Almeida R. Cost-effectiveness of colorectal cancer screening in average-risk adults. In: Young GP, Rozen P, Levin B, eds. Prevention and Early Detection of Colorectal Cancer London: WB Saunders Co Ltd 1996: 328
• 6 Barloon T J, Shumway J. Medical malpractice involving radiologic colon examinations: a review of 38 recent cases.  AJR . 1995;  165 343-346
• 7 Plumeri P A, Rogers J. A lawyer's view of colon cancer in the 1980's.  J Clin Gastroenterol . 1988;  10(2) 229-231
• 8 27 Cal.3d 285, 611 P.2d 902 165 Cal Rptr 308 (1980).
• 9 Lynch H T, Paulson J, Sevrin M, Lynch J, Lynch P. Failure to diagnose hereditary colorectal cancer and its medicolegal implications.  Dis Colon Rectum . 1999;  42(1) 31-35
• 10 A century of breast cancA century of breast cancer litigation is ``deconstructed. ''. Oncol News Int . 1995;  4(8) 5