Breast cancer and medical malpractice---sometimes game, set, and match for defense before you get to serve!

“Tort reform” sounds like it should be about correcting laws that are unreasonably unfair. It's not. It’s really about expanding unfair advantages the health care industry already has and completely ignores the unfairness that already exists for those seriously injured as a result of medical negligence.

In recognition of the recent Susan B. Komen Race for the Cure walk and run, Legalsmeegal in this post will focus on an unfairness in our legal system that particularly impacts breast cancer medical malpractice claims. This is the “Statute of Repose”. Statutes of Repose are specially enacted laws that extinguish the rights of injured patients to file medical malpractice claims against their negligent physicians after a specified time has passed from the date of the medical negligence. In Maryland, for example, the Statute of Repose is five years. The problem is that the Statute of Repose runs from the time of the negligent act and, in many instances, it takes a breast cancer patient more than five years to even know she has been subjected to medical negligence.

Here’s how it works. Let’s take as an example a woman residing in Maryland who, in 2002, has a small breast malignancy for which she has a lumpectomy. The pathology report on her surgical specimen indicates that the margins are clear----no cancer cells were bumping up against the edges of the tissue removed. The patient and her surgeon are thus led to believe that that there were no cancer cells left behind. The goal, of course, is to get ALL of the cancer cells, not just SOME. However, in this instance, the pathologist screwed up as he failed to see under the microscope that the cancer cells had extended all the way up to the edges of the tissue removed on one side of the surgical specimen. Six years later, a breast lump appears in the patient’s same breast in the area of the incision for her 2002 lumpectomy. It is the same cancer, not a new cancer. Unfortunately, the cancer has now had enough time to not only grow into a new palpable breast mass but to also spread to the patient’s lymph nodes, lungs and bones. The patient’s prognosis is dire, even with very aggressive treatment.

Okay, you say, but the pathologist did not do it on purpose and at least he will end up having to provide reasonable compensation to his patient for the horrendous harm that has resulted from his oversight. Wrong. For any other type of negligence claim in Maryland the injured party has three years from the time he knew or had reason to know he had been injured by someone else’s negligence to file a law suit. That’s the Statute of Limitations. But when the negligent party is a member of the health care industry, the Statute of Repose also requires that the injured patient must file a law suit within five years from the date of the negligent act. That means our breast cancer patient lost her medical negligence claim against her negligent pathologist in 2007, a year before she even learned she had recurrent cancer. In short, game, set and match for the negligent pathologist before his patient was able to do anything about it.

Breast cancer victims are not alone in being unfairly precluded from seeking accountability from negligent members of the health care industry. The draconian Statute of Repose affects all patients who have cancers that can take years to become clinically apparent and are curable with early diagnosis and treatment. For example, colon cancer patients whose primary care physicians don’t take the time to look for occult blood in stool specimens or who fail to order colonoscopies for their patients beginning at least at the age of 50, can go years before their undetected cancers rear their ugly heads. The same is true for cervical cancer patients whose positive pap smears are misread and misreported as normal and years go by before the cancer in situ has become an invasive deadly cancer.

How can you justify cutting off the right of horrendously injured patients to file medical malpractice law suits against their negligent treating physicians before the patients have reason to suspect the negligence? You really can’t. But, yet, you hear nothing about correcting this gross unfairness in any of the discussions about the need for “tort reform”. Why? Because it was the “tort reform” movement that resulted in these unfair Statutes of Repose being enacted in the first place. And this is not just a problem for Maryland patients. The health care industry and its aligned medical liability insurance industry have been successful in having Statutes of Repose enacted in many States throughout our country.

“Tort Reform”. Sometimes you can’t tell a book by its cover.