As an Oncology expert in the context of medical malpractice litigation, it’s my job to provide a truthful and well substantiated opinion, most often in the realm of causation. My other responsibilities are limited, but crucially important. My charge is to bring my medical background and experience to the case. Helping to find and formulate a theory as to what happened in any given case. The rest is up to the attorney – mine is a limited view and my role is a supporting role.
However, it is obvious that the court will react positively to a simple, straightforward theory. A theory that is well supported by the facts; a theory that reflects on a logical, consistent, and compelling narrative that is easy to understand. On the other hand, the court will not accept a complicated, non-self-referential theory that does not “hang together.”
In this sense, the most successful matters are cases of missed diagnosis. In our rushed and fragmented health care system – where doctors don’t often talk to patients or even to one another – it is not uncommon for lab results, a finding on imaging, or even a pathology report to go missing or to be missed.
For example, an individual who goes to an Emergency Room may be suspected of having a pneumonia. A resident, a Physician’s Assistant, or even an emergency room doctor may briefly eyeball an x-ray, see no pneumonia, and discharge the patient. The film then goes to the radiologist, who finds a suspicious mass in the lung. He describes it and recommends follow-up studies, such as a CAT scan or a PET scan. Unfortunately, the report comes back to the Emergency Room a day or two later and gets filed; but no one notices the new findings, and no one tells the patient.
This can and does happen in physicians’ offices and other healthcare sites as well; not only with x-rays, but also pathology reports, critical laboratory findings, and other test results. The finding is not recognized until the diagnosis is made, sometimes with a considerable delay. This delay may be sufficient to convert an early stage cancer – one that can be cured with surgery alone – to a metastatic, incurable cancer. As a result, the patient is diagnosed in a non-curable metastatic stage. And is subjected to painful or disfiguring extensive surgeries, chemotherapy, or radiation.
What remains for an oncologist is simply to pull out the survival statistics for then and now; usually from a highly reliable source such as the American Cancer Society’s website that presents the SEER (Surveillance, Epidemiology and End Results) database results for each stage for the time period in question. This database contains survival statistics obtained from cancer registries for all cancer types in the United States by stage. It is only released once every decade. With the caveat that the survival rate of many cancers is rapidly increasing and may be significantly and sufficiently higher in a particular year than that reported in the SEER database a decade previously, or that it may be modified by grade or other tumor characteristics, all that is left for the causation expert to do is to compare the two prognoses.
In such cases, the other side cannot argue the facts. They will often invoke scientifically questionable concepts such as doubling time and micrometastases to claim that the patient was already doomed. Even as early as the time of the missed diagnosis. It is then my responsibility to explain why these theoretical constructs are not true in the real world. I highlight the largely theoretical nature of these concepts and their inapplicability to how cancers behave in patients. As well as how we now think cancers actually metastasize. To support my position, I show graphs on which the conceptions of micrometastases rely, explain why they are not correct or clinically applicable, and emphasize that – in real patient’s cancer – cells spread as clumps and groups of cells. This invalidates the mathematical assumptions behind the concept of micrometastases.
It also falls to me to explain how the body handles micrometastases even if they do occur, how it can dispose of or isolate them, and the role of the immune system and tumor kinetics that make it unlikely that most micrometastases can survive and establish themselves for future growth. I point out that the survival statistics already factor in the possibility of micrometastases. I also explain that adjuvant chemotherapy is given precisely to clear micro metastases. And had the patient been doomed, there would have been no place for adjuvant chemotherapy in early cancer.
Most laymen can relate to and easily grasp military parallels; God knows, in the war on cancer, we use them all the time. I talk about establishing a beachhead under attack, how cancer cells have to create supply lines, or they die out, the role of immune counterattack and the like. This makes these scientific concepts immediately understandable and well tell our story.
In my limited experience, I learned that telling a simple, powerful and logical story is what wins. Of course, as an expert I must speak the truth. In cases of this kind, however, the truth is usually quite clear. Telling a consistent, simple, story that hangs together is something that the expert must do to increase the chance that our judicial system results in justice; and that appropriate compensation is obtained to, in whatever measure possible, to right the wrongs committed and improve the life and lot of those injured and their families when a diagnosis is missed.
