Malpractice Suits and Physician Apologies in Cancer Care

Consider the following case: The patient is a 44-year-old woman who presents for radiation treatment of an isolated locoregional recurrence of breast cancer in her chest wall, 3 years after undergoing mastectomy. At the time of diagnosis, she had T2N2M0 disease, with four of 15 lymph nodes involved with tumor. She received a mastectomy with negative margins and appropriate chemotherapy, but none of her physicians talked to her about postmastectomy radiation therapy, which would clearly have been indicated to reduce her risk of locoregional failure and would have been expected to improve her likelihood of survival. She asks the radiation oncologist who sees her whether this recurrence could have been prevented, and she notes that when she was diagnosed with the recurrence, a nurse asked her why she had not received radiation before. She states that she is thinking of retaining an attorney. The radiation oncologist says, “Dwelling on what could have been done isn't productive—let's just focus on how we can fight this cancer now.” This case reveals some of the dilemmas oncologists face when treating patients who have suffered from substandard medical care. It also highlights some of the shortcomings of the existing tort system, both in addressing the legitimate claims of the patient who has been harmed by negligent care and in promoting quality improvement. In this article, we survey the US medical malpractice system and assess the effectiveness of tort law at achieving its goals. We then consider how physicians and health care organizations could better assist negligently harmed patients and simultaneously reduce future mistakes. Specifically, we describe how the hypothetical case presented might have been handled if it had occurred at our own institution, which has adopted a novel approach to promote transparency and remedy through disclosure and apology by negligent providers to injured patients. This program was designed to compensate patients swiftly and fairly when there is evidence of harm caused by unreasonable care, as well as to decrease future errors through continuous quality improvement and an open exchange with injured patients about medical mistakes. In this article, we use the term “negligent” specifically to denote the legal standard of care for medical malpractice liability. Although the precise contours vary by state, negligent typically refers to a level of treatment below that which would be provided by physicians with “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing,” under the circumstances.1(p187) We use the term “unreasonable” when discussing the Michigan program because that is the relevant threshold established by the program. These need not be synonyms, nor need they be exclusive or even exhaustive categories of medical error. For example, iatrogenic injuries may result for reasons unrelated to negligent or unreasonable treatment; it may be that a course of treatment comes to be seen as the wrong course ex post when the decision to follow the course was appropriate and reasonable ex ante. Some might consider these reasonable decisions as not errors at all. Others might consider them errors in a broader, abstract sense, but only classify them as unfortunate or regrettable, not negligent or unreasonable. We use the term “substandard” more generally to denote care that fails to meet a certain threshold or standard.