Report: Lawsuits limit cancer tests

Too many Florida women go without mammograms as legal fears affect medical providers, a task force says.

Published December 18, 2004

TALLAHASSEE - Experts and doctors agree that not enough Florida women are getting mammograms, but the cause of the shortfall has provoked a sharp debate.

Now, a task force appointed by the Legislature and the governor is blaming lawsuits for discouraging radiologists from offering mammograms, which could reduce the availability of the test.

The task force, comprised largely of radiologists and insurance representatives, recommends the Legislature consider increased legal immunity for mammography specialists, including a $150,000 cap on punitive damages for malpractice claims.

"If action is not taken now," the report states, "more cancers will go undetected, delays in treatment will increase and more unnecessary deaths will occur."

But critics say the task force's findings are based on inconclusive evidence. They say there is a greater need to address more critical factors preventing women from getting mammograms, particularly low income and lack of insurance.

"The malpractice changes would take away a victim's rights for no reason," said Betsey Herd, a malpractice lawyer with the Tampa law firm of Wagner, Vaughan & McLaughlin. "It would give these patients less protection than any other patients on the books."

The task force sprang from a controversial proposal during the spring legislative session to grant radiologists who read mammograms immunity from patients' lawsuits.

The bill drew criticism from many, including the Florida Academy of Trial Lawyers. It was eventually scaled back to a study of the availability of mammograms in Florida.

Dr. Ada Patricia Romilly, a task force member and administrative leader for breast imaging for the H. Lee Moffitt Cancer Center in Tampa, said fewer radiology residents want to study mammograms because of the potential legal risks.

More than 13,350 women in Florida will be diagnosed with breast cancer this year, and 2,480 women will die from the disease. Mammograms correctly find cancers 83 to 95 percent of the time, but as much as 17 percent of tumors are missed during at least one exam.

A 2002 Physicians Insurers Association of America breast cancer study examined malpractice claims involving 25 companies. It found radiologists accounted for 33 percent of all claims and the most common allegation against radiologists was "mammogram misread."

There are four breast-imaging fellowship programs with six available seats in Florida, according to the task force's study. All are vacant.

The task force also cited a recent survey of 211 radiology residents that showed 63 percent of students wouldn't accept a fellowship in breast imaging.

"Why would you get into a field where you have all these trepidations?" Romilly said. "Why would they jeopardize their lives and their careers if it's not absolutely necessary?"

To lure more radiologists into the field, the task force is recommending that the Legislature grant radiologists the same protection given to emergency room doctors, including a different burden of proof in medical liability cases.

But Herd, who was also a member of the task force, said it's unfair to compare radiologists to emergency room doctors, who have to make split-second decisions to save a patient's life.

"A mammogram is scheduled," Herd said. "A radiology technician can ask questions, take a medical history. That's a relationship an ER doctor doesn't get the benefit of having."

Also, because there is a lack of accurate medical liability insurance and claims data, the task force had to base its findings mostly on national studies and anecdotal evidence, Herd said. She said she plans to urge legislators to focus on the task force's other findings, especially the difficulty low income and uninsured women have in obtaining mammograms.

The study showed about 69 percent of women who are privately insured get annual mammograms, while only 42 percent of uninsured women and 4 percent of non-HMO Medicaid patients get the test.

"If the Legislature is going to run off and give special interests this kind of protection without any data, with only a perception, then what is going to happen to the victims?" Herd said. "Something has to be done to help them."

Carrie Johnson can be reached at 727 892-2273 or cjohnson@sptimes.com