This article continues our discussion of issues that can result in a medical malpractice case regarding breast cancer. Though not an exhaustive list, it summarizes (when combined with part 1) the most common reasons why a breast cancer patient or family member on behalf of the patient would pursue legal action against a provider.
7. Omissions in treatment—These fall into three main categories:
- Failure to refer the patient for a medical oncology consultation about chemotherapy, hormonal therapy and/or biologic targeted therapy. To safeguard this, it is useful for all patients to be referred for a consultation, whether the surgeon making the referral anticipates the patient needing any of these modalities of treatment. It is not within the scope of practice for the surgeon to make that medical decision.
- Failure to refer the patient for a radiation oncology consultation about radiation therapy. Any patient having a lumpectomy should be automatically referred for a radiation therapy consultation. It especially can be useful to do this in a proactive way and have the patient seen preoperatively for a discussion with the radiation oncologist. Why? So that the patient is fully informed of the risks and benefits of radiation therapy. In some cases, upon hearing details about possible side effects (short- and long-term) a patient may opt to do mastectomy instead. If this isn’t known until after lumpectomy surgery has been performed, the patient will be undergoing a second operative procedure exposing her again to general anesthesia, risk of infection, and psychological anguish.
- Losing the patient to follow-up. Although we rely on patients to keep their appointments, it doesn’t always happen for a variety of reasons, such as poor communication, noncompliance, lack of transportation to come to the appointment, fear of hearing test results, or fear of the purpose of needing to come. Ensuring that there is a quality-control process and thorough documentation of what steps were taken to reach the patient and have her return is critically important. And as a navigator, identifying these barriers and eliminating is key.
8. Educating patients about lymphedema risk—Although with the inception of sentinel node biopsy procedures being standard of care, fewer patients are undergoing axillary node dissection. And as a result a reduction in the incidence of a patient developing lymphedema has also declined. Even in the presence of sentinel node biopsy however, it’s important for patients to be educated about lymphedema risk and taught steps to take to help reduce her risk. This education should take place before her surgery because she should be applying these risk-reduction steps immediately.
9. Offering reconstruction options—Women undergoing mastectomy surgery or a large lumpectomy automatically should be referred for a plastic surgeon consultation. Even those who may not be a candidate for immediate reconstruction would still benefit from a consultation. However, a study published by the American Society of Plastic Surgeons in 2009 found that 70% of women who are candidates for reconstruction are not offered this consultation. Women having large lumpectomies may be best served having oncoplastic surgery to reshape the breast and perform a breast reduction on the contralateral side. And today for women having mastectomy, there are a variety of reconstruction options. Even if your facility doesn’t offer each type, the patient should be made aware of them so that she can decide if she is content with the options available or wishes to seek a plastic surgeon outside of your team for future reconstruction. Implants and transverse rectus abdominus myocutaneous (TRAM) flap are the most commonly offered reconstructions across the country. Deep inferior epigastric perforator (DIEP) flap, superior gluteal artery perforator (S-GAP) flap, and transverse upper gracilis (TUG) procedures, however, are usually better options from a quality-of-life perspective than a TRAM flap because they do not sacrifice any muscle. If a woman undergoes a TRAM flap and later has a hernia or other abdominal issue that results in surgery then hears about DIEP flap, she can take legal action for not being fully informed of the risks and benefits of each reconstruction option. It is also not advisable to perform mastectomy with simultaneous flap surgery for patients who may be in need of radiation therapy, because of the delay in cosmetic results (a shrinkage of the flap over time.)
10. Assessing patients for possibly carrying a breast cancer gene—Women who have an early diagnosis of breast cancer commonly will be advised to have lumpectomy surgery. Though that is in keeping with standard of care, if she were to carry a breast cancer gene, her risk of recurrence is much higher than a patient without a genetic predisposition to having the disease. Additionally her risk of contralateral breast cancer would be higher than average as well as her risk of potentially developing ovarian cancer in the future. So part of the clinical assessment that needs to take place at the time a patient is initially diagnosed (or for that matter has a diagnosis of atypical ductal hyperplasia or lobular carcinoma in situ) is whether she meets the criteria for genetics counseling and testing. If so, having results back before performing surgery can be an important navigation step to ensure she is fully informed of her risk of local and distant recurrence as well as of new primary breast cancer in the contralateral side. Carrying a gene commonly results in informed patients opting to do bilateral mastectomies with reconstruction. It is very important to include the family pedigree of cancers for three generations, including father’s side of the family as well as mother’s. Remember that other cancers are linked genetically to the breast cancer genes, including ovarian, melanoma, pancreatic, prostate ,and colorectal cancers.
11. Treatment for metastatic disease—The diagnosis and treatment of women with stage IV breast cancer can be heart-wrenching and complicated. The National Comprehensive Cancer Network clinical practice guidelines deleted the performance of routine scans and tumor marker tests for assessing the presence of distant metastasis in 1998. This can be frustrating to patients who are worried that their disease will not be caught early should they end up eventually diagnosed with metastatic breast cancer. What is a sad reality and has been proven in clinical research, the timing of when someone is diagnosed with metastatic breast cancer doesn’t impact the length of time they survive. (For example, diagnosing someone in January instead of in May doesn’t result in the patient living longer. Their death would still occur at approximately the same time despite treatment.) Patients can also be frustrated when told they will be receiving hormonal therapy rather than chemotherapy, assuming that the oncologist has “already given up” on them, when in fact the purpose of treatment has changed. Additionally, for her treatment to be accurately selected, as it relates to hormonal therapy, it is important to perform biopsies on the organ sites where the cancer has spread. In some cases, that which was hormone receptor–positive in the breast becomes hormone receptor–negative when it migrates to other sites in the body. Treatment at this stage is to control the disease and maintain quality of life and not to attempt to cure the patient of the disease. Educating the patient about this significant philosophical difference is important. Communication with the patient about goals of treatment, particularly as treatments need to change with progression of the disease is critical. Having a discussion about the patient’s personal goals is crucial too. This should result in discussions about when is the appropriate time to stop treatment and take a path to achieving closure with her life, including making her wishes known, her family aware, and dying with dignity. This must be balanced with thoughtful discussions about phase 1 clinical trials that she may be a candidate for but may opt not to embark on.
So give thought to your role as a navigator in the prevention of the various pitfalls that can happen to a patient through the diagnosis and treatment process. You can be instrumental in helping to prevent such unfortunate situations happening to patients by being their advocate too.