Early detection is key to survival in breast cancer cases. Early detection is possible only through proper screening and diagnosis. This in turn will depend on the risk factors present in the particular individual.
The question then comes up as to the duty of the doctor to investigate the patient’s risk factors for breast cancer.
Doctor’s Duty of Knowledge and Skill
The duty to conduct breast cancer risk assessment on the patient arises from the basic duty of knowledge and skill required for doctors. New Mexico Jury Instruction §13-1101 address the duty of a doctor or other health care provider in this regard stating the doctor or medical provider must:
“possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors…(other health care provider)] practicing under similar circumstances, giving due consideration to the locality involved. A [doctor] … (other health care provider)] who fails to do so is negligent.“
This jury instruction specifically applies to diagnosis. The question will come up as to the “similar circumstances” and “locality”as will the necessity of referrals for additional screening beyond the realm of the treating medical provider.
Duty to Refer to Specialist
This too is covered by the jury instructions. Under New Mexico Jury Instruction §13-1103, there is a specific duty to make a referral to a specialist where need be:
“If a treating doctor knows, or should know, that a doctor with other qualifications is needed for the patient to receive proper treatment, it is the duty of the treating doctor to tell the patient.”
In case of breast cancer screening and diagnosis, this would most definitely suggest a referral to an specialist where the patient exhibits high risk of breast cancer. At a minimum, the patient should probably be referred to an ObGyn in the event that the patient does not already have one.
Duty of the Specialist
Once the referral is made to a specialist, there are additional duties upon the specialist under New Mexico Jury Instruction §13-1102. If a doctor holds him or herself out as a specialist, then the doctor is:
“under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified specialists practicing under similar circumstances, giving due consideration to the locality involved. A doctor who fails to do so is negligent.”
The jury instruction notes that the “degree of knowledge, skill, and care required of a specialist is usually higher than that required of a non-specialist, but it is never lower.” As such, a specialist would have a significantly higher standard of care with respect to risk assessment and consequent screening and diagnostics.
Level of Screening by Primary Case v. Specialist
The level of expertise required of specialists is clearly higher than that of primary care doctors. There will different standards of care regarding risk factor analysis and consequent screening and diagnoses depending upon the status of the doctor or medical provider.
However, a base level of risk factor assessment would seem to be called upon by the basic standard of care addressed in UJI 13-1101 above. There is no shortage of literature on the risks of breast cancer or the risk factors that increase that risk. Consequently, a failure to conduct basic risk factor analysis and to communicate this to the patient even at the primary care level would seem to fall below the standard of care.
The Agency for Healthcare Research & Quality (AHRQ) has a list of recommendations regarding breast cancer screening. The first recommendation from the AHRQ is annual mammograms for women aged 40 or older.
This recommendation comes with the qualification that there is some level of dispute regarding this necessity. However, it is recommended by the American College of Obstetricians and Gynecologists (ACOG). Indeed, there has been some recent confusion over this and the AHRQ recognizes that there is some dispute. However, should you have any doubt, read the article from source, Daniel Kopans, MD: There Should Be No Confusion About Breast Cancer Screening
The remaining recommendations from the AHRQ are based on consensus and expert opinion in the field:
- Annual clinical breast exam for women aged 40 years and older.
- Clinical breast exam every 1-3 years for women aged 20–39 years.
- Encourage breast self-awareness and breast self-examination with direction for women to report any changes in their breasts to their medical providers.
- Education of women on the predictive value of mammography along with the possibility of false-positive results and false-negative results.
- Women should be advised of additional imaging or biopsies that may be suggested by the screening results.
- Enhanced screening for women estimated to have a lifetime risk of breast cancer of 20% or greater based upon risk assessment.
- Enhanced screening for women who test positive for BRCA1 and BRCA2 mutations with discussion of risk reduction methods.
Duty to Inform the Patient of Risk Factors
Under New Mexico Jury Instruction §13-1104C, there is a duty to inform the patient of “what a reasonably prudent patient would regard as material to [his] [her] decision.” Clearly, a patient would want to know of the breast cancer risk factors and particularly any that directly apply to her.
The patient cannot possibly make informed treatment decisions without knowing her own individual risks. In turn, the risks can be known only through a risk assessment.
And where there are clearly heightened risks for a patient, there is a both a duty to conduct further diagnosis as well as to refer to an appropriate specialist.
Patients do have duties themselves. This would entail honest and full disclosure of risk factors when asked by the medical provider.
There is a jury instruction for this as well. New Mexico Jury Instruction §13-1110 states rather succinctly:
“Every patient has a duty to exercise ordinary care for the patient’s own health and safety. A patient who fails to do so is negligent.”
This does not mean that the doctor can pass on responsibility to the patient for medical care. It does not relieve the doctor of inquiring into and addressing risk factors. The patient will not bear the full burden of identifying and cataloging all her risk factors.
On the other hand, it is most certainly in the patient’s self-interest to be proactive in identifying her risk factors. In light of the high level of diagnostic errors in breast cancer, it is safe to say that a patient cannot necessarily rely upon her doctor. In the end, it will be little comfort in knowing that you have a medical malpractice claim because the doctor should have asked and didn’t.
One thing that is certainly worth doing, particularly in the case where the medical provider is simply not asking the question or the right questions is to do a self-assessment which can be done with the National Cancer Center’s Breast Cancer Risk Assessment Tool.
And if your doctor is not asking these questions, the next thing you should do is get a new doctor!