Malpractice Suit by LE Patient
Comments
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From the article:
According to the petition filed May 10 in Jefferson County District Court, Akins [the patient] was referred to Gonzales [the doctor] in September 2010 for evaluation of a right breast mass. On Dec. 9, 2010, Akins underwent a right breast lumpectomy and axillary lymph node dissection.
Pathology showed low-grade invasive ductal carcinoma, according to the suit. Thirteen lymph nodes were negative for malignancy. Post-operatively, Akins developed lymphedema and continues to undergo treatment, which includes lymphatic drainage, vasopneumatic pumping, exercise, diet and nutritional counseling, the suit states.
"The standard of care for breast cancer patients with clinically negative lymph nodes is to perform sentinel lymph node biopsy at the time of the lumpectomy ... instead of an axillary lymph node dissection," the suit states.
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Hmmm.... While I do like that SNB is now the standard-of-care, and I do think breast surgeons/general surgeons/plastic surgeons ought to know that and ought to advise their patients accordingly...
... a good defense attorney could probably get this surgeon aquitted. The patient cannot prove it was the ALND that caused her lymphedema. We know ALND poses a greater risk than SNB, but there are other factors at play here. For instance, she had a lumpectomy -- did she also get radiation? We know that's a major contributer. We also know that even women who have SNB with a very small number of nodes removed can end up with LE. So, having SNB would not have guaranteed her an LE-free life.
OTOH, a good litigator might be able to convince a jury that the surgeon was negligent in not employing the current standard-of-care.
OTOOH (on the other other hand): I recall reading lots of stuff advising that, although SNB was the new standard, it should only be employed if the surgical team had the skill, experience, and technical support to do it properly. I think that was even buried in the NCCN professional guidelines.
otter (who is not an attorney but has stayed at a Holiday Inn Express before and watches a lot of reruns of Law & Order)
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Otter, I have watched a lot of Law and Order too, and I'm wondering if the patient could prevail on standard of care. In 2010, the standard of care was SNB, not ALND for a clinical stage 1 cancer. But you're right, they always say "if the surgeon has expertise in it"--how hard is it to inject a dye and use a geiger counter??
My father, a retired lawyer, always says you have to prove harm. I think harm occurred here.
Binney says that no one has ever sued for LE: interesting to see how this turns out. It holds the surgeon accountable for not taking reasonable steps to reduce her risk of LE.
Kira
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Thanks, NatsFan! Let's hope her lawyer knows more about LE than her doctor did. Makes you wonder, was she given any LE risk-reduction information prior to surgery? Was LE even listed on the surgical consent form?
Then again, I've never watched Law & Order, so what do I know?
Binney -
So, where'd she find these lawyers - late night TV informercial?
Standard of care in the community...what percentage of lumpectomies done at the hospital this surgery was done at did SNB vs. what was done for her? She chose the doctor. Did she sign the informed consent forms? Which type of node biopsy did her second opinion prior to surgery recommend?
It's not like the guy used leeches instead of suction. I don't see any allegations of disasters happening during the surgery, and it is not his fault she was one of whatever percentage of women that developed lymphadema. Even if she had a SNB, she was still at risk for it, so its not like she was 100% sure it wouldn't have happened. As a matter of fact, I have no idea how she could possibly prove she wouldn't have had this complication from a SNB.
Cha-ching, cha-ching..great country we live in...and people wonder why medical insurance costs so much, and why healthcare costs are out of control? Exhibit 1 - his malpractice carrier is stuck defending this action, which means that every breast surgeon in Texas will see a premium increase.
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Itsjustme: there are steps that surgeons can take to reduce the risk of lymphedema, and that is currently not considered a quality standard, and lymphedema is just considered an unfortunate risk--yet risk reduction behaviors from surgeons can reduce the risk.
In this case, the surgeon did a complete ALND vs. a SNB, not the standard of care, and increased her risk.
As those of us with LE have dealt with the general attitude of "it's not my fault" from our often ill informed surgeons and other providers, while we're not into spurious malpractice suits, I personally am pleased that an attorney even took this case.
No lymphedema patient has ever sued for malpractice.
Unfortunately, it takes real consequences to make our surgeons and other health care providers take the risk and the repercussions seriously.
His malpractice carrier could settle in a heartbeat. No lawyer would take the case unless there were significant damages and a standard of care was violated.
I recently gave a talk to senior gyn oncology and breast health surgeons and they were completely unaware of steps they could take to limit both upper and lower extremity lymphedema--and it's not rocket science, it's just that they're uninformed, and don't take care of the patients' lymphedema to see the consequences.
I'm not a PI lawyer, and I hate spurious malpractice lawsuits, but I do have lymphedema, and my surgeon didn't give a rat's ass about taking steps to prevent it.
And, since she opted not to attend my lecture, although her department chief did, I have to assume it's still not high on her priority list.
So, I'm hoping this gets her attention.
Kira
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I don't practice personal injury, and I have never been to Texas, and I'm still telling you that she may be able to prove cause, but she cannot prove proximate cause. If the surgeon can trot out 20 patients who had the same procedure and did not develop lymphadema, and then bring out an additional 20 patients who had SNB's and DO have lymphadema she has no case. And I can just about guarantee that can happen. Neither you nor I know what the "standard of care in the community" where she had her surgery is...we haven't seen hospital records to see what type of node surgery that community and/or hospital uses as its standard. We have no idea what guidelines their surgeons must follow. We don't know whether she had a second opinion (standard of care for a patient in the community?), and what the 2nd opinion recommended.
THere is no way they're going to settle this, because our legal system is based on precedent. I can say with a high degree of certainty that this will be fought as hard as anything has ever been fought, becaue other wise it would open the floodgates for everyone who develops a complication of any sort to sue, if they can find a newer method of doing surgery, whether available in the hospital they chose or not. And personal injury lawyers take all sorts of cases, many times hoping for a "nuisance settlement" or an unexpected homerun. It costs them very little, as the client is responsible for all out-of-pocket expenses, win or lose. That's why you see all those awful "1-800-lawyer" commercials on late-night TV. Ambulance chasers are a sleazy bunch.
I'm sure having lymphadema is awful. I don't doubt that for a second. But, how do we know whether her specific case of lymphadema was caused by radiation, not surgery? My surgeon told me that because I had radiation, it affects the nodes as badly as having them all removed during surgery, so she would be checking me for a while.
Unless there's a 100% chance of lymphadema from the surgery she had, and a 0% chance from the surgery she claims she should have had, then I hope she doesn't win...with the litiginous society we are living in, where everyone wants "free money" it would just be yet another factor in raising health care costs, that are already spiraling out of control.
It's great that you are taking it upon yourself to educate surgeons and others about the varying degress of risk each procedures involves in regard to lymphadema. That should be commended. You are doing someting pro-active to solve a problem, unlike that woman playing the "victim" card and trying for free money that you and I will ultimately end up paying for. If more people were like you, many societal problems could be solved. And I mean that sincerely, so few people take the time to try and create change, and I really do think that's awesome.
I do believe there is a plce in society for malpractice actions, but I also believe that the wrong must rise to the level of gross negligence. Doing a lumpectomy on the wrong side = malpractice. Leaving a surgical sponge in the patient = malpractice. Failure to maintain a sterile environment during surgery = malpractice. Using a tried and true methond of surgery, rather than something more cutting edge = not malpractice. It's just not gross negligence. It might be old-fashioned, but she hired the surgeon, met with him and chose him. JMO
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itsjustme,
Wow, thank you for the detailed reply and the education.
I teach the "Schwartz curriculum" out of Mass General, and there's a section on medical error, and poor outcomes, and the common theme is that patients just want acknowledgement of their suffering, a physician to say they're sorry--if appropriate, and someone to continue to care.
For so many of us with lymphedema, none of that happened, so we're pissed, and we do feel victimized, and I harbor secret fantasies of my breast surgeon and rad onc, somehow being forced to suffer repercussions for their behaviors--totally cavelier with tissue trauma, denied that radiation causes LE--along with my rad onc--and flat out refused to help me beyond an initial referral. And, when I got an axillary seroma, made me make the decision re: aspiration. Yeah, I harbor a lot of anger toward these providers, and I try and educate them, but as Nitocris wrote earlier: you can swim in a sea of knowledge and come out dry.
Lymphedema was on no consent form I signed--and yet I worked subsequently for a rad onc facility where it was. Serious lack of informed consent.
Even with a background in medicine, I found when I made decisions about my initial treatment, I had to have an element of blind trust, and I felt that trust was violated.
So, yeah, I'd like acknowledgement that I was harmed, and some of that harm was unavoidable, yet some was avoidable, and that those who harmed me care. They don't. They've moved on. I live with it. So, I'd love to see that woman prevail on some level, but do understand the potential of excess litigation for poor outcomes.
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Kira, I understand what you're saying. The biggest problem with an apology or an acknowledgement, is are there patients out there who would sue based on the apology...deliberately misconstrue an "I'm sorry this happened" to create unnecessary liability.
It's such an uneasy truce between the medical and legal professions because of this (and I have both professions in my family, so I can see both sides of it) - the doctor may truly feel bad that someone suffers a side effect - really - but its not their fault, and so they can (or are advised to) say nothing.
Maybe one solution would be having a para-professional on staff to be the "official apologist". Have legal figure out the proper wording, and let someone who could not ever be held liable - like the office manager - say "I'm sorry this is happening, you're not alone in this, and we can help you find resources". But for a physician to say I'm sorry, and risk finding himself in court -or unable to renew his malpractice insurance, so out of business, isn't really the answer, either. I don't have a good answer because we don't live in a perfect world.
I've had some things happen throughout this journey that I'm not thrilled about, and wish I had been warned about. It wouldn't have changed my choices, but at least I would have been prepared for it. And yes, there are times I am still mad at my breast surgeon for not warning me about numbness and other things. But, I never once thought about suing her, you know?
It's hard to require things, because resources in different places vary so greatly. You teach in a top tier medical facility. My oncology and radiology was done out of Sloan Kettering. Chances are if the AMA decided it would be in the best interest of their members to discuss lymphadema, these places would be at the forefront of doing so. But what of the people in rural areas or poor areas whose medical practioners can't afford the extra layer of personnel to pull off an education/warning/apology group such as this? If their continuing education isn't up-to-date, to where they're using older surgical methodology, then chances that their ancillary staff training may not be cutting edge either.
I don't know how to fix these problems, and I'll be the first to admit that.
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I agree with Kira that surgical informed consent forms are often woefully inadequate (the ones I have signed have been). Studies do suggest that doctors who apologize and admit their limitations are less likely to be sued. My guess is there is something going on in this case. For example, maybe the surgeon did something that wasn't on the consent form the woman signed. Was there a medical error? KS1
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And at University of Michigan, they instituted a "sorry" policy, several years ago, and found their malpractice suits dropped considerably. Sincere apology doesn't lead to lawsuits, but reduces them, as patients really want care, concern, responsibility and to be heard.
There's great care being given at community hospitals: one thing I could observe, working for radiation oncologists, was the work of many surgeons, and whose patients got lymphedema--and the best one, by far, was a community physician. The head of the university practice is so into cosmesis and oncoplastic surgery, that her patients get lymphedema at very high rates.
I verbally told my surgeon I was very concerned about lymphedema, and she told me not to worry, and then acted in a manner that increased the likelihood of it happening. And it was not on the consent form I signed for surgery as a possible side effect. And the radiation oncologist flat out told me that radiation to the level 1 nodes never caused lymphedema. It's just not a priority for them.
I'm with KS1--I would imagine that medical error or poor documentation occured.
I've seen suits proceed solely based on lousy documentation.
Kira
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It seems to me itsjustme's point is that, even if fewer patients sue when they receive an apology, those who DO sue have a better case because of the apology, so the doctor's more likely to lose. So he doesn't apologize to any of them, because he doesn't know which ones will sue and which won't.
Definitely a flawed system, and we're caught in the middle of it.
Binney -
Thank you Binney4, that is exactly what I meant.
And you're completel right - we are caught in the middle of it. But, as flawed as it may be, I guess its worth it, as we from everything I read on this site, have the most freedom of choice, which also gives us the shortest waiting periods for all of our tests.
I hate games that no one can win.
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Here's a link to the U of M policy--it's worked well for them:
http://www.med.umich.edu/news/newsroom/mm.htm#summary
Our approach can be summarized as:
"Apologize and learn when we're wrong, explain and vigorously defend when we're right, and view court as a last resort."We care deeply about our patients, and we take it very seriously when one of them is injured, concerned or unhappy about the care we have provided. We also care deeply about our staff, and we want to support and protect them so they can continue to do great work. And, we want to create as safe an environment as possible for both patients and staff
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Flawed is the right word. Over 30 years ago, I did a two-year clerkship in our local Circuit Court - the major felony and major lawsuit level of court. I saw lots and lots of lawsuits. I think the problem is that a system of weeding out substandard doctors via lawsuit is horribly inefficient. It's a crapshoot. A great doctor who has a single unavoidable bad outcome might be nailed with a huge judgement, while a doctor who routinely practices substandard medicine may never be sued or even disciplined.
There is absolutely a set of lawyers who seize on a bad outcome and try to make the doctor pay, even when the doctor has done everything right. But there is also absolutely a subset of doctors who routinely practice substandard medicine because they do not keep up with their field or are simply incompetent. Every doctor in a given community knows who those doctors are, yet out of some kind of protectiveness or misguided professional courtesy, these doctors are rarely disciplined or otherwise called to account by their peers. In those cases, sometimes a lawsuit is the only way that the doctor can be stopped.
The mistrust that has been bred by the subset of lawyers who chase ambulances and the subset of doctors who practice substandard medicine and their silent peers will take a long time to bridge. There's been so much inflammatory language on both sides at this point.
Ideally, the US would adopt a system where the loser in a case like this has to pay the winner's fees. That would stop a lot of frivolous lawsuits cold. Also ideally, doctors would adopt a pro-active attitude when substandard medicine is reported or suspected, and empower medical boards to take a hard honest look at the doctors in their midst, and require continuing education, counseling, peer review, discipline or license revocation as appropriate. That information should also be made public. That would also stop a lot of lawsuits cold.
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Apparently there is a code of silence in the medical community, and they can depend on it at all levels. I have contacted the AMA's ethics committee chair directly many times regarding the disclosure of LE as a potential side effect of both surgery and rads. Failing to disclose it or put it on the treatment consent forms is a clear violation of their published ethics standards. But they neither email me back nor return phone calls. LE is beneath their notice.
I have to admit, itsjustme, that I wish some doctor would get seriously sued over LE as a wake-up call to all the others, but with the science where it is right now there's no way direct cause can be proven. We simply don't know all the factors that play into this condition. So if justice is done in this case, this woman will lose. To me, justice is way better than a wrongful win, but that doesn't stop me from dreaming of some lympher someday putting LE on the map for every doctor in the country. <Sigh!>
Binney -
You know what, Binney? I believe you can do just that.
There are so many things that aren't disclosed. I never knew about the numbness on my "good" side until afterwards, and they were like "oh yeah, its normal and happens a lot". I never heard of lymphedema before surgery. There are so many things going on, and its so overwhelming that maybe they deliberately don't tell us. I don't know.
I keep wondering, and I can honestly say that had they told me about these risks ahead of time, I still would have chosen to do the treatments I did. It's not like I had much of a choice - well, except BMX v. UMX, but the type of cancer I had (ILC) is more likely to show up on the other side, so back to no choice - and as long as they explained things afterwards, I'm OK with it. I can see why some people wouldn't be, but its not like they withheld information that would've affected my survival of the surgery, you know?
I've been trying to come up with a solution for you, and I was wondering - have you spoken with the various breast cancer awareness organizations, to come up with a practical package for post-diagnosis/pre-treatment ladies. Something like that could include lymphedema research, as well as things like manufacturers of various brands of sports bras that have either front or back closures, types of moisturizers for post-radiation, things like that. So you can work around the AMA by going directly to your audience. Just a thought.
I have to say, I am really enjoying this thread and hearing people's thoughts on this.
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itsjustme:
Binney has been rebuffed by Komen--she can't tell people about LE risk unless she's a corporate sponsor, we did establish a connection to the ACS--I emailed the chairman of the board at his clinical office after they blew off Binney--and unfortunately, they're concentrating their funds on transportation to appointments--no more money for LE, we've tangled with LBBC over some of their newsletters and I believe we're currently at the truce level--they've asked us to review their yoga handout. I had a nasty back and forth with Susan Love over her dissing of LE risk reductions as not "evidence-based". We've taken on impedimed, Stanley Rockson, the LRF, the NLN and LANA.
Due to an infusion of cash from impedimed--maker of the L-dex, and one slightly flawed study--there is now a movement, and an entire edition of "Cancer" based on early detection of LE and proactive oncology rehabilitation. The desire was purely mercenary, and the science is flawed, but the outcome may help a lot of patients.
I call myself "Binney's evil twin": she writes lovely emails and I slam in after her.
I give lectures on lymphedema to medical students, attendings, massage therapists and lymphedema therapists. Binney gives in-services to oncology nurses.
We try.
It's an uphill battle.
I'm enjoying the intellectual back and forth on this thread and the complete civility--thank you!
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I think more information is needed here. It is standard practice to do level I instead of SNB if the tumor is larger than 5cm, multi-centric, and/or had breast augmentation. I'm sure there are other scenarios too but I'm not a BS.
This might be a baseless suit and one of the reasons why health care costs are out of control… malpractice insurance is a big cost that we all pay for.
My BS told me my risk with level I was about 3% but even less since I was thin. I knew I would get it. What I have since learned is getting Taxotere as part of my chemo treatment increased that risk. Am I going to sue him… no. He told me it was a risk. I feel fortunate that my nodes were negative.
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Kira,
All you can do is try. That's more than a lot of people do. Komen has always, even before being diagnosed, always struck me as one charity that loved seeing its name in print, so unfortunately that doesn't surprise me.
I do have one question/suggestion possibly for you - what about approaching a company like Under Armor to see if they would make a pink compression shirt for October, to raise awareness of lymphedema. I've read some of the threads here, and people seem to buy those shirts, maybe you could go about it that way? I don't know if you've tried that or not, but any sort of awareness is better than none, right? And awareness should lead to both education and studies. I realize it can't possibly be just a breast cancer problem, but since it does affect so many ladies, maybe October should be about all facets of diagnosis, treatment and recovery. Just a though (which, I know, is dangerous for me, but still....)
I love the "good cop/bad cop" thing you have going on with Binney!!
Iago,
That is interesting about how the size of the tumor changes the type of node surgery. I never knew that. I wonder if that's a national standard or if they do it differently in different hospitals.
By the time they get past discovery in the case, we will probably all know more than the litigants about this topic.
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L-dex, that's why the LE program at my VA hospital has just started to use. I was their test dummy the first time they were figuring out how to do a setup on a person. This last visit was the first time a real reading was taken. Unfortunately, we don't know what my "norm" is yet. The protocol for new patients will be to take the reading before surgery, just like taking arm measurements before were done.
Ridiculously, my LE therapist told me the L-dex rep actually said that "no one ever gets LE without an ANLD". Crazy! Therapist thought this was ludicrous, was did the Dr in there to see how the reading was going. She said had told the rep, "you sound like a surgeon" and the Dr there at the same time was saying the "sound like a surgeon" part too. HA
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itsjustme, we had an "email UA" campaign awhile back, because so many women here had great ideas for how they could make a shirt that would meet our needs. As you may know, UA does a big October bc deal every year, so we figured they were at least involved to that extent. They invited me to submit the ideas via their in-house suggestion/invention box, and eventually emailed us to tell us they'd turned it over to their designers. We're hoping they'll come up with something for October, but it's out of our hands for now. What we wanted were things like flat seams (to not irritate the skin and block lymph flow), a lower neckline so we could wear it under other clothes, no logo showing. In other words, a real compression undergarment/outer garment with some style. Maybe they'll do us proud!
Wouldn't it be interesting to have a transcript of what those lawyers have to say about LE in the courtroom? Yikes!
Hmmm, maybe not....Be well!
Binney -
itsjustme10 It is still standard care regarding Level I node removal for 5+ cm tumors. I remember checking it out before I had it done because I was so concerned about getting LE in spite of what my BS said. Mom has it in her legs as did her uncle with no nodes removed.
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Actually, I just pulled up the latest NCCN guidelines and for SURGICAL AXILLARY STAGING - STAGE I, IIA, IIB and lllA T3, N1, M0--the current recommendation is to only proceed to ALND level l/ll is if the axilla is clinically positive--FNA/biopsy/ultrasound positive. And they are recommending the new approach, that if a T1 or T2 tumor and 1-2 nodes positive, do not proceed with ALND.
So even with a big primary tumor, if the axilla is clinically negative, SNB is the standard of care.
Anyone can read NCCN guidelines, just register on the site. This is the 2012 guideline. The care would be judged by the 2010 guideline.
Kira
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I have learned a great deal from this very caring exchange of views and information. I might well have made a different choice on one aspect of my care and avoided LE had my BS given me accurate information about LE risk and precautions. It has never crossed my radar screen to sue; I just live with the discomfort and frustration. This discussion does help me understand why our shared frustration with healthcare providers is not likely to improve. We are in a stalemate with them. Litigation or the threat thereof impedes productive discussion between wounded and wounders, however unintentional the latter. So mistakes and misjudjments do not produce change of protocol.
Thanks to all for time spent contributing to this eye-opening discussion.
Carol -
Thanks Kira for update. This must have changed recently. Granted the NCI is a recommendation/guideline, not one that a BS must follow. I bet in my case my BS might recommend level I due to the aggressive nature of my tumor.
I wish we had more info regarding the plaintiff's diagnosis.
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All I could find was "low grade IDC"
The Texas Courts seem to update their system on the 1st of each month, so you can't find the complaint on line yet. They don't mention her stage or the size of the growth, so its hard to tell - if this is how its being reported, it sounds like it was copied from the complaint, so it could be a long time until all the facts come out.
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Just found this thread and it's been very interesting. I've never been one to sue but your mind certainly goes there when faced with LE. I've had a lot of anger since being dx a few months ago especially because I truly believe mine was caused by surgeon error. (During consult for revision PS said he would use original incisions in the IF but placed them in the armpits instead. I developed symptoms within months.) Even when I confronted my PS he denied using axillary incisions could have any bearing on my symptoms but has since stopped using this technique. I can empathize with that patient so much and how much anger she must feel when she truly believes her LE could have been prevented. I do agree it's a losing battle but, if nothing else, it gets LE in the press. If I had the means I would consider it myself knowing I don't have a snowball's chance in h*** of winning.
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It is very interesting. But this one even more so, especially the surgeon's reply. http://www.abcactionnews.com/dpp/news/political/florida-plastic-surgeon-sues-his-internet-critics
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Interesting...you're allowed to have an opinion and express that opinion, so the person who called him "cold uncaring and rude" has nothing to worry about, other than getting their legal fees paid for by the doctor. That's his or her opinion of the doctor, and he can't force that person to change his or her mind about it. Libel and slander laws are not intended to be the Thought Police.
The patient who accused him of billing her for a procedure that wasn't done? If its not true, it could easily be found as libel. Truth is an absolute defense, so if she can prove that is so, then there's nothing the Doctor can do about it. If she made it up, I think he does have a case. But, I don't know if he had damages because of it.
JMO, but that is really going to be an interesting case to read the judicial opinion.
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