Failure-to-Detect Claims Against Dermopathologists

As everyone knows, many cancer deaths could be avoided by early detection because many types of cancer are treatable when detected early on. Examples include cancers of the breasts, lungs, colon, prostate, cervix, ovaries, testicles and kidneys, to name a few. Often, the physician most responsible for early detection is a radiologist, pathologist or dermopathologist.'

Because the laws in different jurisdictions vary, medical malpractice cases must be handled differently in different states, but the underlying issues are still generally similar. Here, we specifically address prosecuting medical malpractice claims against dermopathologists for failure to timely detect skin cancer, as well as compare and contrast such claims as brought in Pennsylvania and New Jersey.

Establishing Duty

In both Pennsylvania and New Jersey, as a matter of law, a claim for medical malpractice is not cognizable unless the “target” physician owes the plaintiff a duty of care. The duty of care owed by a dermopathologist arises by virtue of his or her willingness to undertake interpreting the cutaneous pathology slides.

The typical case scenario arises as follows: The plaintiff notices an abnormality and reports it to the primary care physician who, pursuant to the standard of care, orders a biopsy of the tissue, which is placed onto pathology slides. The slides are sent to a lab company, which interprets the slides as normal. The plaintiff is told nothing is wrong. The plaintiff then notices a return of the abnormality after some period of time. The treating physician, pursuant to the standard of care, orders a second biopsy, which results in a second set of pathology slides. The second set of slides is interpreted as abnormal (demonstrating malignant cancer cells). This, then, causes the treating physicians to revisit the original pathology slides, which show that the malignant cancer was present all along and was missed by the original dermopathologist. The delay in diagnosis is devastating to the plaintiff and substantially increases the risk of harm to to him, many times resulting in unnecessary death.'

This scenario may seem like it presents an easy claim. However, while this may be a strong case, it is by no means an easy case.

The Way It Works

Let's start from the beginning. We can assume that in every instance, the plaintiff will be able to establish that he was owed a duty of care. This is despite the fact that, in most, if not all, instances the plaintiff will never have met the dermopathologist who interpreted the pathology slides. Instead, the sample is usually obtained at the clinician's office. Once the laboratory facility receives the pathology slides, it will then assign a dermopathologist to interpret them, generate a report and forward the report to the primary care or treating physician. The treating physician then relies on the normal finding and reports the same to the plaintiff, who in turn relies on the normal finding.

The plaintiff's attorney needs to be aware that the dermopathologist may not actually be employed by the laboratory facility, but may be an independent contractor. In any event, the plaintiff has two potential “target” defendants: the dermopathologist and the laboratory facility. In both Pennsylvania and New Jersey the claim against the laboratory is brought under the theory of ostensible or apparent agency. (In Pensylvania it is called “ostensible agency” and in New Jersey “apparent agency,” but these terms describe the same circumstances.)

Be aware that, because often the plaintiff is very ill, it is particularly incumbent upon the plaintiff's attorney to ensure that a deposition takes place with the plaintiff to establish ostensible agency. If this is not possible, an immediate relative with intimate knowledge of the facts and circumstances may be deposed.

The Dermopathologist

Assuming the element of duty is established, the next issue to address is breach of that duty. In order to establish the breach of duty, the plaintiff's attorney must have a working understanding of the terminology and the nature of dermopathology and the particular cancer in general.

First, what is a dermopathologist? According to most medical texts, dermopathology is a subspecialty of both dermatology and surgical pathology that focuses on the study of cutaneous diseases at a microscopic level. It also encompasses analyses of the potential causes of skin diseases at a cellular level. Dermatopathologists work in close association with dermatologists. In fact, some of them are trained primarily in dermatology themselves.

Pathology, which is the precise study and diagnosis of disease, addresses four components of disease: cause/etiology; mechanisms of development (pathogenesis); structural alterations of cells (morphologic changes); and the consequences of changes (clinical manifestations).

One of the greatest challenges of dermatopathology is its scope. It is believed that more than 1,500 different disorders of the skin exist. Therefore, dermatopathologists must maintain a broad base of knowledge, and be familiar with several other specialty areas in medicine. Because of this, it is common for the defense to argue that the dermopatholigist was faced with' a “tough read” in a particular case.' In other words, the argument goes, the world of possibilities for an abnormal study is so vast, it is hard to catch them all. Certainly, the plaintiff's attorney cannot be disuaded by this defense, but rather must focus on the fact that the finding was there to be interpreted, in full color, and the plaintiff relied on the dermopathologist's expertise.

Upon completion of a medical degree, a physician becomes certified in dermatopathology by completing residency training of three years in dermatology and/or pathology. Thereafter, the physician must spend an additional one or two years of post-residency education in dermatopathology. For trainees with a primary background in pathology, the fellowship experience includes the equivalent of six months of clinical dermatology. For those whose training is primarily in dermatology, six months of the fellowship are devoted to anatomic pathology. In the United States, dermatopathologists are first certified by the American Boards of Pathology or Dermatology, or the American Osteopathic Boards of Pathology or Dermatology, and they then obtain subspecialty certification (termed “special competence”) in dermatopathology by written examination.'

Just because a physician holds himself out as a dermopathologist and practices as a dermopathologist does not mean that he or she is board certified. In fact, many physicians will fail the boards or not even take them, yet still practice in the field. This is fertile ground for cross-examination.

The Standard of Care

Assuming that the defendant is, in fact, a dermopathologist, the next facet of the claim is the negligence or breach of duty, also known as deviation from the standard of care.

The claim itself revolves around the dermopathologist's interpretation of the pathology slide. For this reason, the major piece of evidence in a claim against a dermopathologist is the pathology slide itself. Therefore, it is necessary to understand how the slide was generated. When a patient undergoes a biopsy, the physician is removing a specimen of the abnormal or diseased tissue for laboratory examination. The tissue is referred to as a “tissue block.” After the doctor removes the biopsy specimen, it is placed in a container with formalin (a mixture of water and formaldehyde) or some other fluid, to preserve it. The container is labeled with the patient's name and other identifying information (patient number and birth date, for example), and with the site of biopsy (stating exactly from where on the body it was taken).

The slide is then sent to the pathology lab, along with a paper called a pathology requisition form. This form also identifies who submitted the biopsy, the date the biopsy was taken, information about the patient's symptoms, other abnormal test results and what type of disease the doctor expects the biopsy may show.

The dermopathologist may first look at the specimen without a microscope; this is known as a gross examination (meaning seen without a microscope). To do a gross examination, the dermopathologist simply looks at, measures and/or feels the tissue before it is processed further, observing the tissue sample's size, color, consistency, and other characteristics. The lab staff may even take a picture of the sample as part of the record. The gross examination is important because the dermopathologist often sees features that suggest cancer. It also helps the dermopathologist decide which parts of a large biopsy are the most critical to study under a microscope.

Once the decision is made concerning which part to study, a lab technician will slice the tissue block into very thin layers that are placed on a glass slide. For small biopsies, however, like a punch biopsy or a core needle biopsy, the entire specimen is usually looked at under a microscope.

The tissue to be looked at under the microscope is placed into small containers called cassettes. After processing ' which may take a few hours but is usually done overnight ' the tissue sample is placed into a mold with hot paraffin wax. This paraffin wax block with the embedded tissue is placed on an instrument called a microtome, which cuts very thin slices of the tissue. These thin slices of the specimen are placed on glass slides, then dipped into a series of stains or dyes to change the color of the tissue. The color makes cells more distinctive when viewed under a microscope. The entire process of looking at the solid specimens in this way is called “histology,” which is the study of the structures of cells and tissues.'

During Litigation

Cancerous cells will produce unique patterns that the dermopathologist should be able to identify. There are many different possibilities for these patterns and it is important that the plaintiff's attorney choose an expert who is capable of explaining the process in an easy-to-follow manner, to the extent that this is possible under such complex circumstances.

Ultimately this process of histology allows the dermopathologist to assist the treating physician in confirming a diagnosis of the diseased tissue. During the discovery phases of the litigation, a common question that is asked concerns how many slides were generated. Depending on the amount of tissue removed, there may be half a dozen or more slides. These slides usually have an identification number that is included in the plaintiff's medical record. Depending on the size of the tissue removed, the laboratory facility will keep the remaining block. If the slides are lost or need to be examined as part of the litigation, the attorney can request that pathology make new slides from the original tissue block.

In next month's issue we will continue our discussion of the prosecution of medical malpractice claims against dermopatholigists, and explore the similarities and differences in how Pennsylvania and New Jersey handle the issues of causation, damages and who may testify as an expert in these cases.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, PC, in Newtown, PA.

'

As everyone knows, many cancer deaths could be avoided by early detection because many types of cancer are treatable when detected early on. Examples include cancers of the breasts, lungs, colon, prostate, cervix, ovaries, testicles and kidneys, to name a few. Often, the physician most responsible for early detection is a radiologist, pathologist or dermopathologist.'

Because the laws in different jurisdictions vary, medical malpractice cases must be handled differently in different states, but the underlying issues are still generally similar. Here, we specifically address prosecuting medical malpractice claims against dermopathologists for failure to timely detect skin cancer, as well as compare and contrast such claims as brought in Pennsylvania and New Jersey.

Establishing Duty

In both Pennsylvania and New Jersey, as a matter of law, a claim for medical malpractice is not cognizable unless the “target” physician owes the plaintiff a duty of care. The duty of care owed by a dermopathologist arises by virtue of his or her willingness to undertake interpreting the cutaneous pathology slides.

The typical case scenario arises as follows: The plaintiff notices an abnormality and reports it to the primary care physician who, pursuant to the standard of care, orders a biopsy of the tissue, which is placed onto pathology slides. The slides are sent to a lab company, which interprets the slides as normal. The plaintiff is told nothing is wrong. The plaintiff then notices a return of the abnormality after some period of time. The treating physician, pursuant to the standard of care, orders a second biopsy, which results in a second set of pathology slides. The second set of slides is interpreted as abnormal (demonstrating malignant cancer cells). This, then, causes the treating physicians to revisit the original pathology slides, which show that the malignant cancer was present all along and was missed by the original dermopathologist. The delay in diagnosis is devastating to the plaintiff and substantially increases the risk of harm to to him, many times resulting in unnecessary death.'

This scenario may seem like it presents an easy claim. However, while this may be a strong case, it is by no means an easy case.

The Way It Works

Let's start from the beginning. We can assume that in every instance, the plaintiff will be able to establish that he was owed a duty of care. This is despite the fact that, in most, if not all, instances the plaintiff will never have met the dermopathologist who interpreted the pathology slides. Instead, the sample is usually obtained at the clinician's office. Once the laboratory facility receives the pathology slides, it will then assign a dermopathologist to interpret them, generate a report and forward the report to the primary care or treating physician. The treating physician then relies on the normal finding and reports the same to the plaintiff, who in turn relies on the normal finding.

The plaintiff's attorney needs to be aware that the dermopathologist may not actually be employed by the laboratory facility, but may be an independent contractor. In any event, the plaintiff has two potential “target” defendants: the dermopathologist and the laboratory facility. In both Pennsylvania and New Jersey the claim against the laboratory is brought under the theory of ostensible or apparent agency. (In Pensylvania it is called “ostensible agency” and in New Jersey “apparent agency,” but these terms describe the same circumstances.)

Be aware that, because often the plaintiff is very ill, it is particularly incumbent upon the plaintiff's attorney to ensure that a deposition takes place with the plaintiff to establish ostensible agency. If this is not possible, an immediate relative with intimate knowledge of the facts and circumstances may be deposed.

The Dermopathologist

Assuming the element of duty is established, the next issue to address is breach of that duty. In order to establish the breach of duty, the plaintiff's attorney must have a working understanding of the terminology and the nature of dermopathology and the particular cancer in general.

First, what is a dermopathologist? According to most medical texts, dermopathology is a subspecialty of both dermatology and surgical pathology that focuses on the study of cutaneous diseases at a microscopic level. It also encompasses analyses of the potential causes of skin diseases at a cellular level. Dermatopathologists work in close association with dermatologists. In fact, some of them are trained primarily in dermatology themselves.

Pathology, which is the precise study and diagnosis of disease, addresses four components of disease: cause/etiology; mechanisms of development (pathogenesis); structural alterations of cells (morphologic changes); and the consequences of changes (clinical manifestations).

One of the greatest challenges of dermatopathology is its scope. It is believed that more than 1,500 different disorders of the skin exist. Therefore, dermatopathologists must maintain a broad base of knowledge, and be familiar with several other specialty areas in medicine. Because of this, it is common for the defense to argue that the dermopatholigist was faced with' a “tough read” in a particular case.' In other words, the argument goes, the world of possibilities for an abnormal study is so vast, it is hard to catch them all. Certainly, the plaintiff's attorney cannot be disuaded by this defense, but rather must focus on the fact that the finding was there to be interpreted, in full color, and the plaintiff relied on the dermopathologist's expertise.

Upon completion of a medical degree, a physician becomes certified in dermatopathology by completing residency training of three years in dermatology and/or pathology. Thereafter, the physician must spend an additional one or two years of post-residency education in dermatopathology. For trainees with a primary background in pathology, the fellowship experience includes the equivalent of six months of clinical dermatology. For those whose training is primarily in dermatology, six months of the fellowship are devoted to anatomic pathology. In the United States, dermatopathologists are first certified by the American Boards of Pathology or Dermatology, or the American Osteopathic Boards of Pathology or Dermatology, and they then obtain subspecialty certification (termed “special competence”) in dermatopathology by written examination.'

Just because a physician holds himself out as a dermopathologist and practices as a dermopathologist does not mean that he or she is board certified. In fact, many physicians will fail the boards or not even take them, yet still practice in the field. This is fertile ground for cross-examination.

The Standard of Care

Assuming that the defendant is, in fact, a dermopathologist, the next facet of the claim is the negligence or breach of duty, also known as deviation from the standard of care.

The claim itself revolves around the dermopathologist's interpretation of the pathology slide. For this reason, the major piece of evidence in a claim against a dermopathologist is the pathology slide itself. Therefore, it is necessary to understand how the slide was generated. When a patient undergoes a biopsy, the physician is removing a specimen of the abnormal or diseased tissue for laboratory examination. The tissue is referred to as a “tissue block.” After the doctor removes the biopsy specimen, it is placed in a container with formalin (a mixture of water and formaldehyde) or some other fluid, to preserve it. The container is labeled with the patient's name and other identifying information (patient number and birth date, for example), and with the site of biopsy (stating exactly from where on the body it was taken).

The slide is then sent to the pathology lab, along with a paper called a pathology requisition form. This form also identifies who submitted the biopsy, the date the biopsy was taken, information about the patient's symptoms, other abnormal test results and what type of disease the doctor expects the biopsy may show.

The dermopathologist may first look at the specimen without a microscope; this is known as a gross examination (meaning seen without a microscope). To do a gross examination, the dermopathologist simply looks at, measures and/or feels the tissue before it is processed further, observing the tissue sample's size, color, consistency, and other characteristics. The lab staff may even take a picture of the sample as part of the record. The gross examination is important because the dermopathologist often sees features that suggest cancer. It also helps the dermopathologist decide which parts of a large biopsy are the most critical to study under a microscope.

Once the decision is made concerning which part to study, a lab technician will slice the tissue block into very thin layers that are placed on a glass slide. For small biopsies, however, like a punch biopsy or a core needle biopsy, the entire specimen is usually looked at under a microscope.

The tissue to be looked at under the microscope is placed into small containers called cassettes. After processing ' which may take a few hours but is usually done overnight ' the tissue sample is placed into a mold with hot paraffin wax. This paraffin wax block with the embedded tissue is placed on an instrument called a microtome, which cuts very thin slices of the tissue. These thin slices of the specimen are placed on glass slides, then dipped into a series of stains or dyes to change the color of the tissue. The color makes cells more distinctive when viewed under a microscope. The entire process of looking at the solid specimens in this way is called “histology,” which is the study of the structures of cells and tissues.'

During Litigation

Cancerous cells will produce unique patterns that the dermopathologist should be able to identify. There are many different possibilities for these patterns and it is important that the plaintiff's attorney choose an expert who is capable of explaining the process in an easy-to-follow manner, to the extent that this is possible under such complex circumstances.

Ultimately this process of histology allows the dermopathologist to assist the treating physician in confirming a diagnosis of the diseased tissue. During the discovery phases of the litigation, a common question that is asked concerns how many slides were generated. Depending on the amount of tissue removed, there may be half a dozen or more slides. These slides usually have an identification number that is included in the plaintiff's medical record. Depending on the size of the tissue removed, the laboratory facility will keep the remaining block. If the slides are lost or need to be examined as part of the litigation, the attorney can request that pathology make new slides from the original tissue block.

In next month's issue we will continue our discussion of the prosecution of medical malpractice claims against dermopatholigists, and explore the similarities and differences in how Pennsylvania and New Jersey handle the issues of causation, damages and who may testify as an expert in these cases.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, PC, in Newtown, PA.

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