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    The next malpractice crisis?

     

     

    Assuming there are two million carriers of pathogenic BRCA and Lynch Syndrome mutations in the United States, it is likely that, without intervention, at least one million of them will eventually develop cancer. Although most of these one million patients are not presently aware that they carry a pathogenic mutation, they will almost certainly learn so once they are diagnosed with cancer. 

    At that point, the only question is: How many of them will piece the puzzle together and file a lawsuit. If we assume that the number is just 5% and conservatively estimate an average indemnity payment of $2 million for each case, the potential liability is $100 billion (50,000 lawsuits times $2 million per lawsuit).

     

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    For comparison, the total annual premium collected by the malpractice insurance industry in the United States is just $15 billion, and most of that money is already allocated to other cases.   

    Fortunately, clinicians can avert this potential crisis with the most basic of clinical tools—obtaining a family cancer history with attention to the criteria in the accompanying tables. To facilitate the process, most of the information can be gathered by physician extenders or provided directly by the patient using an electronic interface to the medical record. 

    Because there is significant overlap between the cancers caused by the various genetic mutations, most at-risk patients are best served by undergoing a “panel test,” which simplifies the process for the physician and identifies twice as many pathogenic mutations as single-gene testing for BRCA or Lynch Syndrome.

    The Affordable Care Act requires insurers to provide coverage for both BRCA and Lynch Syndrome testing at no cost to the patient. And in most cases, the added cost to the patient for a full panel test is nominal. Patients who test positive for a pathogenic mutation can be referred for further evaluation while those who test negative can be provided with the appropriate reassurances.   

     

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    While the genesis of the next malpractice crisis is difficult to predict, the millions of patients who meet criteria for genetic testing but who have not been tested represent a level of financial exposure that could overwhelm the insurance industry. Fortunately, most of this exposure is within the control of primary care physicians. 

    Victor R Cotton, MD, JD
    Victor R Cotton, MD, JD, is President of Law and Medicine, Hershey, Pennsylvania.
    Douglas H Kirkpatrick, MD
    Douglas H Kirkpatrick, MD, is Past President of the American College of Obstetricians and Gynecologists and practices in Denver, Colorado.

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