An American Association for the Advancement of Science publication recently discussed how medical practitioners are increasingly using DNA in their work. Physicians and other medical professionals are entering a new realm in genomic medicine, which brings with it some potential for malpractice liability.
Lawsuits have begun to emerge involving whether such testing is offered, how it is interpreted, and how counseling is performed. This was the focus of a recent symposium at the University of Minnesota where doctors, hospitals, and other medical providers discussed how to best prevent harmful liability.
What is Genomic Medicine?
The field of genomic medicine is rapidly emerging. It involves considering the genetic profile of patients when making decisions relating to their care. Genomic medicine is now playing a role in oncology, the development of pharmaceuticals, and many other areas of practice. Newborns in the U.S. are now tested for as many as 50 diseases that are inherited genetically as part of new public health initiatives. It is expected to continue to be critical in neonatal care.
A study at Stanford University recently revealed that DNA can be used to determine if a recipient's body will reject a transplanted organ or not. The current means of assessing this requires very invasive testing. This new approach uses just a small blood sample.
Relating to Standard of Care
Cases of medical malpractice center on whether the professional performed up to the level of the current medical standards. In rapidly evolving areas of practice, such as genomic medicine, a consensus may not yet have been reached that defines and establishes any such current standard.
Gary Marchant, of the Center for Law, Science and Innovation at Arizona State University, recently compiled over 50 cases of medical negligence that specifically involved failures associated with genetic testing. Examples include a failure to order such testing or a problem with the interpretation of the results of such tests.
Case Involving Death of 16-Year-Old
In Polaski v. Whitson, Joseph Polaski, who was 16 years old, died from hypertrophic cardiomyopathy. Several years earlier, his father had been subjected to an EKG that showed he had a serious genetic condition. The lawsuit asserted that the practitioner should have known that his son was likely to inherit the condition. The defendant had not treated the teenager; however, the lawsuit attempted to show that this was a clear instance of negligence.
“Re-contacting” Patients as New Findings Arise
Often new findings are revealed involving DNA. What is the responsibility of the medical professional to “re-contact” patients that they had seen in the past that may be significantly impacted by the finding? Often a patient has moved, changed their phone number, or is otherwise unable to be reached.
Examples of Liability
Some of the common types of claims include the following:
- A failure to sufficiently obtain information regarding family history
- A failure to refer “the patient for genetic counseling”
- A delay in ordering testing or misinterpretation of genetic test results
- A failure to address the potential impact that a hereditary illness may have on other members of the family