Failure to Diagnose Breast Cancer Malpractice Claims: A New Threat to Obstetrics and Gynecology? Kenneth V. Heland, JD Associate Director, Department of Professional Liability The American College of Obstetricians and Gynecologists Washington, DC
Abstract Malpractice claims against obstetrician-gynecologists for failure to diagnose breast cancer are increasing, but loss prevention techniques can provide quality patient care and avoidance of claims.
uring the past decade, the term "professional liability crisis" became synonymous with the specialty of obstetrics and gynecology. Although the crisis has not abated, in the 3-year period from 1987 to 1989, obstetrician-gynecologists across the United States experienced a relative lull. Malpractice insurance premiums increased only slightly, and the adverse effects of professional liability on physician practice patterns stabilized. There is emerging evidence to suggest, however, that the present lull is the "calm before the storm." Failure to diagnose breast cancer claims may make the crisis of the 1980s seem mild by comparison.
D
THE HISTORICAL CONTEXT During the 1980s, the specialty of obstetrics and gynecology was buffeted by professional liability concerns. Average premiums increased by 248% from 1982 to 1989, rising from $10,946 to $38,138. As the decade ended, the typical obstetrician-gynecologist was 47 years old, had been in practice 16 years, and had been sued three times. 1
The primary cause of the crisis during the 1980s was the brain-damaged baby case: malpractice cases usually involving catastrophic neurologic impairment to an infant allegedly due to oxygen deprivation or mechanical injury during labor. These types of cases were and continue to be both frequent and severe. Because the frequency and severity of claims for a particular medical specialty constitute the actuarial components of malpractice insurance rates, obstetrics and gynecology usually is the highest or second-highest specialty (behind neurosurgery) in terms of malpractice insurance premium classification. 96
HELAND:FAILURETO DIAGNOSE BREASTCANCER MALPRACTICECLAIMS
© 1991 by The Jacobs Institute of Women's Health
1049-3867/91/53.50 WHI Vol. 1, No. 2 Winter 1991
As we enter the 1990s, brain-damaged baby claims remain a major problem. The most recent American College of Obstetricians and Gynecologists (ACOG) professional liability survey found that these claims comprised 31.4% of all obstetric claims opened and/or closed during 1988-1989 and comprised 18% of all claims--a frequent allegation indeed. As far as severity is concerned, the average amount paid on behalf of an obstetrician-gynecologist for a brain-damaged infant claim was $596,823, almost three times as much as the $211,320 average indemnity for all claims. In spite of these gloomy numbers, the specialty of obstetrics and gynecology is beginning to cope with the special problem of the brain-damaged baby case. Starting with the 1985 publication of the National Institutes of Health collaborative report on current knowledge about prenatal and perinatal causes of neurologic dysfunction, 2 there have been a number of studies that have established that perinatal asphyxia is rarely the cause of neurologic impairment. 3-6 This medical evidence has improved the defensibility of brain-damaged baby cases on the grounds that there is no causal relationship between the care provided and the infant's impairment. At the same time, states such as Virginia and Florida have begun to experiment with no-fault compensation funds for these infants and their families. 7,8 A NEW CLAIM THREAT? Although there may be hope for an obstetric "solution," failure to diagnose breast cancer malpractice claims pose a new threat. Several years ago, the staff of the Department of Professional Liability of A C O G noticed a subtle shift in the educational programs offered by the malpractice plaintiffs' bar. The department is on the mailing lists for legal education programs, and malpractice courses devoted exclusively to failure to diagnose claims are now available. Many of these courses focus primarily on cancer cases, and special courses devoted exclusively to breast cancer claims are starting to appear. If the courses are here, can the cases be far behind? As shown in Figure 1, failure to diagnose breast cancer claims are still relatively infrequent, accounting for 3.7% of all claims opened and/or closed against obstetrician-gynecologists in 1988-1989. Yet this relatively small percentage of current claims is of little comfort when some other facts are taken into consideration. The most recent study by the American Medical Association's socioeconomic monitoring system of the frequency of malpractice claims by specialty indicated that obstetrician-gynecologists experienced 15.5 lawsuits per 100 physicians in 1988. 9 If one assumes that there were approximately 25,000 practicing obstetrician-gynecologists in that year, it means that slightly fewer than 4000 total claims were filed against them nationally. Four thousand claims seems a fairly small number for a specialty in crisis. But when one looks at the potential frequency of failure to diagnose breast cancer claims, the numbers are truly frightening. The American Cancer Society estimates that there will be 175,000 new cases of breast cancer ,,, Breast C a n c e r 3.7%
/
tw i
O t h e r O b - G y n Claims 78.3%
.
,\
WHI Vol. 1, No. 2 Winter 1991
i.-
Abstract Malpractice claims against obstetrician-gynecologists for failure to diagnose breast cancer are increasing, but loss prevention techniques can provide quality patient care and avoidance of claims.
uring the past decade, the term "professional liability crisis" became synonymous with the specialty of obstetrics and gynecology. Although the crisis has not abated, in the 3-year period from 1987 to 1989, obstetrician-gynecologists across the United States experienced a relative lull. Malpractice insurance premiums increased only slightly, and the adverse effects of professional liability on physician practice patterns stabilized. There is emerging evidence to suggest, however, that the present lull is the "calm before the storm." Failure to diagnose breast cancer claims may make the crisis of the 1980s seem mild by comparison.
D
THE HISTORICAL CONTEXT During the 1980s, the specialty of obstetrics and gynecology was buffeted by professional liability concerns. Average premiums increased by 248% from 1982 to 1989, rising from $10,946 to $38,138. As the decade ended, the typical obstetrician-gynecologist was 47 years old, had been in practice 16 years, and had been sued three times. 1
The primary cause of the crisis during the 1980s was the brain-damaged baby case: malpractice cases usually involving catastrophic neurologic impairment to an infant allegedly due to oxygen deprivation or mechanical injury during labor. These types of cases were and continue to be both frequent and severe. Because the frequency and severity of claims for a particular medical specialty constitute the actuarial components of malpractice insurance rates, obstetrics and gynecology usually is the highest or second-highest specialty (behind neurosurgery) in terms of malpractice insurance premium classification. 96
HELAND:FAILURETO DIAGNOSE BREASTCANCER MALPRACTICECLAIMS
© 1991 by The Jacobs Institute of Women's Health
1049-3867/91/53.50 WHI Vol. 1, No. 2 Winter 1991
As we enter the 1990s, brain-damaged baby claims remain a major problem. The most recent American College of Obstetricians and Gynecologists (ACOG) professional liability survey found that these claims comprised 31.4% of all obstetric claims opened and/or closed during 1988-1989 and comprised 18% of all claims--a frequent allegation indeed. As far as severity is concerned, the average amount paid on behalf of an obstetrician-gynecologist for a brain-damaged infant claim was $596,823, almost three times as much as the $211,320 average indemnity for all claims. In spite of these gloomy numbers, the specialty of obstetrics and gynecology is beginning to cope with the special problem of the brain-damaged baby case. Starting with the 1985 publication of the National Institutes of Health collaborative report on current knowledge about prenatal and perinatal causes of neurologic dysfunction, 2 there have been a number of studies that have established that perinatal asphyxia is rarely the cause of neurologic impairment. 3-6 This medical evidence has improved the defensibility of brain-damaged baby cases on the grounds that there is no causal relationship between the care provided and the infant's impairment. At the same time, states such as Virginia and Florida have begun to experiment with no-fault compensation funds for these infants and their families. 7,8 A NEW CLAIM THREAT? Although there may be hope for an obstetric "solution," failure to diagnose breast cancer malpractice claims pose a new threat. Several years ago, the staff of the Department of Professional Liability of A C O G noticed a subtle shift in the educational programs offered by the malpractice plaintiffs' bar. The department is on the mailing lists for legal education programs, and malpractice courses devoted exclusively to failure to diagnose claims are now available. Many of these courses focus primarily on cancer cases, and special courses devoted exclusively to breast cancer claims are starting to appear. If the courses are here, can the cases be far behind? As shown in Figure 1, failure to diagnose breast cancer claims are still relatively infrequent, accounting for 3.7% of all claims opened and/or closed against obstetrician-gynecologists in 1988-1989. Yet this relatively small percentage of current claims is of little comfort when some other facts are taken into consideration. The most recent study by the American Medical Association's socioeconomic monitoring system of the frequency of malpractice claims by specialty indicated that obstetrician-gynecologists experienced 15.5 lawsuits per 100 physicians in 1988. 9 If one assumes that there were approximately 25,000 practicing obstetrician-gynecologists in that year, it means that slightly fewer than 4000 total claims were filed against them nationally. Four thousand claims seems a fairly small number for a specialty in crisis. But when one looks at the potential frequency of failure to diagnose breast cancer claims, the numbers are truly frightening. The American Cancer Society estimates that there will be 175,000 new cases of breast cancer ,,, Breast C a n c e r 3.7%
/
tw i
O t h e r O b - G y n Claims 78.3%
.
,\
WHI Vol. 1, No. 2 Winter 1991
i.-
