Emerging Potential For Medical Malpractice Claims For Failing To Order Genetic Testing

One possible emerging problem relates to millions of patients who are genetically predisposed to cancer that would benefit from regular testing for BRCA mutations and Lynch Syndrome. Roughly one of every 400 people harbor a BRCA mutation, which in women, is a strong indicator of the likelihood for breast and ovarian cancer. Lynch Syndrome, a form of inherited colon cancer, is even more prevalent and suggests potential risks for the development of endometrial and gastrointestinal cancers.

The 2017 U.S. Census indicated the population was approximately 320 million, meaning that roughly 2 million people likely carry these mutations. The majority of people do not currently undergo screening and merely 5% have confirmed the existence of BRCA. The actress Angelina Jolie recently revealed that she was a carrier of a BRCA mutation and encouraged more widespread testing. This could lead to a significant legal concern for medical providers. Some hospitals, such as Massachusetts General, have already adopted a protocol for such testing.

A Connecticut woman was awarded $4 million in Downs v. Trias when her physician was found to have demonstrated negligence by failing to inform her of the correlation between her strong genetic predisposition for breast cancer and the potential for ovarian cancer. She had a partial hysterectomy to eradicate non-cancerous fibroids. Her doctor explained that her ovaries appeared healthy at the time and saw no reason to remove them and expose her to the unwanted side effects that may result.

One year later, she was suddenly diagnosed with ovarian cancer that was aggressively progressing. These situations can lead to claims of negligence for a failure to warn the patient of the breast and ovarian cancer correlation and a failure in informed consent for not having the patient consider potential treatment options.

There are three key factors that make the issue particularly troubling:

• Awareness has risen among public health experts that those at risk should be tested due to the often deadly consequences
• The cancer may be preventable and the outcomes are severe injuries and death, meaning malpractice cases would be costly
• With the widespread presence of these mutations among patients, the costs could quickly become uncontrollable

If screening is not established as standard practice, a massive wave of those diagnosed with cancer could begin filing claims of medical malpractice. The Affordable Care Act mandates insurance companies to fully cover BRCA and Lynch Syndrome testing, although many Medicaid plans do not pay for it currently. It is critical for physicians to ask patients about their family’s history of cancer and order testing.

Those who are found to possess these mutations can then be more closely monitored and evaluated proactively. For providers to avert potential litigation they should clearly recommend genetic testing. In addition, to prevent claims of a failure in informed consent, the provider should explain to the patient their specific options to pay for the testing when they lack insurance coverage for it.