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The downside of tort reform


Negligence and malpractice can injure patients, but so can juries, as this specialist discovered.

I'm a medical oncologist who was one of the original forces behind the tort reform movement in Nevada. Overall, I'm happy with the changes in our state, which I believe were necessary to keep good physicians practicing here. Nevertheless, one particular case showed me how the system can backfire.

In 2002, a delightful woman I'll call Mary was referred to me. Two years earlier, she had developed a skin lesion on her pubic area, which her family physician removed and a pathologist diagnosed as a dysplastic nevus. The margins were cleared, and Mary went on her way.

In 2004, the lesion recurred and her FP again removed it. This time it was malignant. Mary was then referred to a general surgeon for a wide excision and primary closure. Because of the lesion's proximity to lymphatics, I requested a lymphoscintigram and a sentinel lymph node biopsy. The surgery was completed and, much to my surprise and chagrin, the lymph node biopsy was positive for melanoma.

After a negative staging workup, we discussed her other options: observation, clinical trial, or interferon therapy. Mary wanted to treat her disease, so she passed on watchful waiting. Likewise, participating in a clinical trial was out of the question, because she'd have to leave town to be treated. That left interferon therapy, which she agreed to.

Earlier evidence of malignancy

In the interim, a second pathologist reviewed Mary's original report from 2002 and found the results were consistent with a diagnosis of malignant melanoma, not a dysplastic nevus. Shortly thereafter, the original pathologist admitted that he'd misread the slides.

Then came the interferon therapy, complete with the expected side effects-fever, chills, sweats, fatigue, and depression. Mary's health declined to the point where she had to take a leave from work. She also developed an unexpected side effect: marked liver function abnormalities, which led to profound weight loss. The interferon was stopped, but the abnormalities persisted. A liver biopsy was performed, and Mary was found to have an autoimmune hepatitis, unmasked but not caused by the interferon. Plans for further therapy were abandoned and, in time, her liver problems resolved.

As I'd expected, Mary sued the pathologist who had misread the original biopsy. Soon after, one of her attorneys asked me to serve as an expert witness in the case. As her treating physician, I felt a moral obligation to support Mary's claim. Her lawyer said she was asking only for damages to help provide for her grandchildren-which ultimately became more important when her husband died unexpectedly from a post-surgical pulmonary embolus.

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.

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