Misdiagnosis is the most common type of medical malpractice case – roughly one-quarter of all claims – and the failure to diagnose cancer is the most common form of misdiagnosis that results in a malpractice claim. (For those interested in the statistics, the most commonly missed cancers are breast cancer, colorectal cancer, and prostate cancer.) I thus spend a lot of time thinking and talking about cancer as part of my legal practice, but over the past two weeks it has seemed like cancer has been a part of almost everything I’ve read and discussed.

Last week, I had to tell a woman that, though I thought her doctor was negligent in failing to diagnose her ovarian cancer, I couldn’t bring a lawsuit on her behalf. As will be explained below, there’s a big difference between malpractice in patient care and proving a malpractice claim in court.

First, a couple words about Steve Jobs. Now that the initial grieving has ended, the big question has been asked several times: would Jobs have lived longer if he hadn’t delayed surgery?

Most medical experts who have discussed his case in public believe the answer is “yes.”MedPageToday rounded up a number of surgical oncologists opining that Jobs should have undergone surgery immediately — a conclusion implicitly backed by a paper Jobs’ own surgeon published in 2006, and by a related follow-up paper earlier this year — for reasons explained in detail by a post on Quora by medical researcher Ramzi Amri:

The big confusion in the media is that Jobs had pancreatic cancer. Though his tumor might have originated in his pancreas, we’re not speaking of the dreaded pancreaticadenocarcinoma that has such a horrible prognosis and makes up for 95% of pancreatic tumors.

Jobs is cited to have said himself that he had an islet-cell tumor, which is a colloquially used, less accurate name for the other 5% of pancreatic tumors, so-called neuroendocrine tumors.

Neuroendocrine tumors are relatively mild forms of cancer. …

Neuroendocrine tumors caught in time can be treated just by surgically removing the tumor.

This is a relatively low-risk treatment that — especially compared to chemo and radiation — has negligible disadvantages. In many cases, a simple enucleation (just cutting out the tumor with a safe margin around it) is enough and leaves no residual side-effects.

In short, Jobs’ “pancreatic cancer” was initially a gastroenteropancreatic neuroendocrine tumor that, although it interfered with his hormone levels, could have been treated by simply removing it and performing a resection of any parts of the pancreas he lost. It wasn’t just a matter of buying him a couple months or years, the treatment would have changed his prognosis considerably, adding years to his life, potentially leading him to live an ordinary life span.

Cancer Remission MisconceptionsBut that’s the strange part about cancer. Until we or someone close to us has gone through cancer treatment, we tend to see it as the process memorably described by the beginning of xkcd’s comic, “Lanes,” part of which is posted on the right.

Consider this article from last week in the Dayton Daily News:

Glenda Christian’s license plates on her Chrysler Town & Country minivan say it all: She proudly wears pink as 19-year breast cancer survivor. …

Although the cancer is in remission, the 54-year-old Washington Twp. resident is adamant in sharing her story to help raise breast cancer awareness in people of all ages and stress the importance of early detection.

After spending 3½ years with her cancer misdiagnosed, Christian is admirably upbeat in recounting the details of her illness and, in particular, how faith guided her through the arduous process of treatment. …

She was diagnosed with stage 3B estrogen-receptor-negative breast cancer.

She had a left mastectomy in 1992 and then chemotherapy. Since she tested positive for BRAC1 – a gene mutation that increases a woman’s risk for breast and/or ovarian cancer – she also had an elective right mastectomy and a hysterectomy in 2008. …

From the beginning, the outlook was grim. Christian was given a two-year survival rate of 50 percent.

In addition to being a survivor of cancer, Glenda Christian is also a survivor of blatant medical malpractice. She first noticed symptoms more than two years before she was properly diagnosed. A mammogram was done and she was cleared. A year later, another mammogram and an ultrasound, and another all-clear. Two separate exams, two failures to diagnose. It wasn’t until she had “cottage cheese-like lumps encompassing more than half of her left breast” that a different doctor diagnosed her with breast cancer.

By the odds, she should have died a long time ago. Yet she’s still here, despite having spent two years with her cancer undiagnosed, while Steve Jobs went a mere nine months refusing treatment of his then-largely-benign tumor and it spread throughout his pancreas and duodenum, requiring he get the dreaded Whipple procedure before dying seven years later.

Their differing outcomes aren’t just due to the differences between breast cancer and pancreatic cancer (or neuroendocrine tumors), but rather to the arbitrary tragedy of cancer. Like xkcd lucidly explained, when you’re diagnosed and treated for cancer, it’s not like you’re cured until the cancer recurs, at which point you repeat the process whenever cancer is discovered again. We don’t understand cancer well enough to know that, although I feel I should mention, we understand it better thanks to Nobel laureateDr. Ralph Steinman, who died the same week as Steve Jobs, but without as much fanfare.

Instead, being “treated” or “untreated” for cancer just changes the odds doctors think you have of surviving a certain timeframe. You can be completely “treated” to the best of medicine’s ability, to the point where no more cancer can be detected, and yet you’re not healed, you just have different odds of survival, odds that are worse than someone who never had that cancer but better than someone who had the cancer but inadvertently or intentionally left it untreated. It’s terribly unfair but there’s a silver lining: a patient can be given two-year survival odds no better than a coin toss — like Glenda Christian was — and live another twenty years, maybe more.

It’s what the U.S. Preventative Services Task Force missed when it recommended ditching prostate cancer screening in healthy men. Regular prostate screening might fail a cost-benefit analysis in the big picture, but the downside to those who didn’t need the screening is minor while the upside to those whose lives were saved is great.

Which brings me back to the case I had to turn down. Her ovarian cancer was missed for nearly a year. She went to another doctor who diagnosed it and immediately recommended what is, in essence, the full array of surgical options: a hysterectomy, abilateral salpingo-oophorectomy, and an omentectomy — i.e., debulking the tumor, then removing the uterus, both ovaries, both fallopian tubes, the fatty tissue over the abdomen, and adjacent lymph nodes. It’s a brutal procedure that leaves the patient dependent on a variety of medications to mediate hormone levels. It leaves women infertile and makes them begin menopause.

The pathology report revealed that the cancer had not spread beyond the initial ovary it was located on.

There are a lot of myths about medical malpractice, two of which come to mind in this case:

  1. The myth that, if a doctor makes a mistake, there will be a lawsuit; and,
  2. The myth that, if a patient has a bad outcome, there will be a lawsuit.

For the first myth, the prior doctor did more than just “make a mistake” — they breached the standard of care by failing to recognize the signs, symptoms and ultrasound appearance of ovarian cancer. But the patient can’t bring a lawsuit against their prior doctor. As every law student has drilled into their head during 1L Torts class, every tort requires proving the defendant had a legal duty to the plaintiff, the defendant breached that duty, and the breach of that duty caused the plaintiff harm.

There’s no doubt every doctor owes a legal duty to their patients to practice medicine at the appropriate standard of care, and, in this case, the doctor breached that duty. But causation is too tricky to prove: in many ways, the patient was “lucky” — not that anyone with any form of cancer is truly lucky — because, in the period in which the cancer was undiagnosed, the cancer didn’t spread to any other tissues.

I think the patient was indeed damaged: the patient’s symptoms worsened in the undiagnosed time frame, and those heightened symptoms, and their duration, was part of why the second doctor ordered such an invasive surgery. But I can’t bring a lawsuit over that; it’s too difficult to prove, too unlikely to result in anything other than years of litigation, tens of thousands of dollars in attorney expenses, just for a verdict for the doctor. There’s a legal claim in theory, but not one in practice, because medical malpractice cases are just too hard to win these days, even if meritorious — a quarter of all bona fide malpractice claims, claims that a panel of doctors believe involve malpractice, don’t recover any compensation.

For the second myth, the patient of course had a “bad outcome.” She had her uterus, ovaries, fallopian tubes, and other organs and tissue removed for a cancer that, in the end, hadn’t even spread from her ovary. But I can’t sue her second doctor for that. I can’t find a credible expert gynecological oncologist would will testify that, “to a reasonable degree of medical certainty,” the second gynecologist should have done less. It was cancer: of course you treat it as aggressively as possible. There are some rare instances in which a plaintiff can recover for unnecessary cancer treatment (like this case), but that’s the exception, not the rule. If a patient has cancer, experts, judges and juries all believe that the safest course is the most aggressive course, and they’re usually right. Consider Steve Jobs.

That is to say, in addition to the life-as-playing-the-odds imposed by cancer, there are two other sets of odds at work, too: the odds a patient’s doctor misdiagnosed the cancer, and the odds that a patient can do anything about it if they did. But while the Hearst Newspapers’ Dead By Mistake series is now two years old, and the Institute of Medicine report To Err Is Human is now more than ten years old, there has been no serious government action towards reducing the incidence of malpractice — just action towards cutting the compensation for victims and the incentives to reduce malpractice, with more in the works.

Until our society as a whole starts addressing some of the root causes of malpractice with the aim of reducing malpractice — rather than the aim of making malpractice insurance companies and hospitals unaccountable — it will be left to malpractice lawyers to salvage fair compensation for cancer victims who should have been cancer survivors. By and large, justice is still available for them, with some notable exceptions like Texas, which trashed its malpractice system and watched its patient safety standards plummet, and Delaware, which adheres to the appalling legal fiction that cancer misdiagnosis victims should have known they had cancer even when their doctor told them they didn’t.

But that system is under constant attack, like with anti-patient representatives in Congress who claim that cutting off malpractice accountability will save the federal budget, even though malpractice is a tiny fraction of our healthcare expenses, and a tiny fraction of the damage malpractice itself causes. Within the next few years, it may be gone entirely across the nation, just like in Texas, and with it any incentive for the health care system to improve.