Parker Waichman LLP Injury Alerts
WOMENS MEDICO-LEGAL ISSUES (PART II): Breast CancerJun 1, 2004 In last month’s Newsletter (Part I), we discussed the wide-range of potential health threats to women posed by HRT (Hormone Replacement Therapy). Although an increased risk of breast cancer is strongly associated with HRT, higher incidences of this dreaded disease are also linked to a number of other substances and complicating factors. Moreover, medical malpractice often leads to the failure to diagnose or properly treat breast cancer. This month’s Newsletter (Part II) is devoted exclusively to information related to breast cancer of which women should be aware.
At the end of the Newsletter is an update with respect to the prescription drug Zyprexa which was previously discussed in September 2003 - More Danger in the Medicine Cabinet: The Anti-Psychotic Drugs Seroquel, Risperdal, and Zyprexa.
Hormone Replacement Therapy:
Although previously discussed in Part I of this series, the link between HRT and breast cancer bears repeating. Estrogen-progestin pills such as Prempro are now being linked to an aggressive form of breast cancer. The Women’s Health Initiative study revealed a significantly increased risk of breast cancer in women who used estrogen-progestin pills. Collectively, the women on hormones had larger tumors which began to spread to nearby tissue and distant parts of the body in about 25% of hormone users with cancer as opposed to only 16% of the women with cancer in the placebo group. Tumors may also grow faster in women on HRT. A similar study conducted in Great Britain concluded that women who were receiving HRT had a much higher incidence of breast cancer than did women not receiving therapy. The study also revealed that woman on HRT with breast cancer had a 22% greater risk of dying from it within 6 years. Estrogen only therapy, while somewhat safer, has also been shown to increase the risk of breast cancer. A Swedish study also concluded that women who were receiving HRT were more prone to new and recurring cancer.
Perhaps the most dangerous risk regarding HRT and breast cancer is the newly discovered risk of inaccurate and abnormal mammograms. An estimated 4% of the mammograms performed on women on HRT may be abnormal. Combined HRT, such as Prempro, causes the breast tissue to increase in density thereby making it more difficult to obtain a clear and accurate mammogram. In cases where there is a delay in detecting the cancer treatment, options are more limited and the prognosis is less favorable.
Birth Control Pills:
Although the subject has been much-debated for years, a recent study seems to confirm the link between breast cancer and birth control pills. The findings were reported at the Third Annual Breast Cancer Conference in Barcelona and were the result of a 10-year collaborative study among Norwegian, Swedish, and French doctors. The increased risk of breast cancer was found to be 26% for woman who reported “any” Pill use and an alarming 58% for woman who had used oral contraceptives throughout the 10-year study period. Women who were still using the Pill after age 45 comprised had the greatest increased risk, 144%. No increased risk was detected in women who took the Pill before age 20 and then stopped, or in women who used the Pill only before their first full-term pregnancy. Interestingly, other studies have shown that women who take oral contraceptives generally suffer a less virulent form of breast cancer.
Ethnicity, Genetic Factors, and Family History:
The mortality rate in African American women is twice that of Caucasians. This disparity may be linked to the following reasons: African American women tend to have larger tumors and more aggressive forms of cancer; they are often economically underprivileged and therefore less likely to have access to effective treatments; and they are less likely to be screened and diagnosed at an early stage of the disease.
It is estimated that 10% of all women with breast cancer have a strong family history of the disease. Inherited gene mutations (BRCA1 and BRCA2) are believed to be responsible for 30% to 50% of the cancers (breast and ovarian) in families with histories of the disease. These mutations are significantly higher in Jewish women of Eastern European descent (2% as opposed to only 0.1% in the general population).
Physical Characteristics and Breast Abnormalities:
Post menopausal obesity has been linked to an increased risk of breast cancer as has weight gain after the age of 18. Women with heavy, dense bones are at greater risk due to their higher estrogen levels. Other studies have claimed to have found an increased risk of breast cancer in taller woman and in those who reach their full growth height by or before age 13.
Higher risks of breast of breast cancer have also been linked to women with dense breast tissue, benign proliferative breast disease or atypical cell growth (atypical hyperplasia), and moderate to severe breast pain associated with menstruation (cyclic mastopathy).
Women who consume an excessive amount of fat or dairy products also fall into a higher risk category.
Exposure to estrogen-like industrial chemicals (xenoestrogens) found in pesticides and other common industrial chemicals (such as DDT, dieldrin and beta-hexachlorocyclohexane) are suspected of increasing the risk of breast cancer.
Many daughters of women who took Diethylstilbestrol (DES) to prevent miscarriages have abnormal reproductive systems and may be at increased risk of breast cancer.
Excessive exposure to radiation is a significant risk factor especially in adult women who received high-dose radiation therapy as children. This may also explain the findings that treatment for thyroid cancer before age 40 with Radioiodine Therapy (RAI) increases the risk of developing breast cancer.
Frequent underarm shaving combined with deodorant use is now suspected of increasing the risk of breast cancer due to the presence of chemicals known as parabens which are often in deodorants.
Second-hand smoke is now suspected as being an environmental factor which increases the risk of developing breast cancer.
Artificial light has joined the list of environmental factors which may cause an increased risk of breast cancer. This is based on the apparent link between extended periods of nightshift work and a greater incidence of breast cancer. It is theorized that bright artificial lighting decreases the body’s supply of melatonin thereby leading to an increase in the estrogen level. In one study, women who worked up to 3 years at night had a 40% higher incidence of breast cancer. That figure increased to 60% when the period was over 3 years.
Polyclinic Aromatic Hydrocarbons:
Polyclinic Aromatic Hydrocarbons, or PAH, are found in substances such as gasoline, oil combustion, cigarette smoke, and fried or barbequed foods. PAH cause DNA damage and women with breast cancer have been found to be 4 times more likely to have PAH-DNA damage.
A number of studies suggest a link between excessive antibiotic use and an increased risk of breast cancer.
While lung cancer is usually the form of the disease most often associated with smoking, studies now indicate there is evidence of a link between smoking and an increased risk of a more aggressive form of breast cancer.
While the negligence of a doctor cannot “cause” breast cancer, it often leads to the disease being more destructive or even deadly. There is no dispute that, when dealing with any form of cancer, early detection and prompt treatment afford the best chance of successfully controlling or curing the disease. Sometimes the patient is responsible for a delay in detection because of inattention to symptoms, denial, ignorance, or failure to have regular medical exams. Many times, however, the failure is on the part of one or more medical professionals.
There have been many examples of facilities which have either carelessly reviewed or failed to review, mammograms (or PAP smears). These situations have resulted in many women suffering far more serious complications of their cancer. In some cases, women have paid for these mistakes with their lives.
While mammograms are not “perfect” as a diagnostic tool, many errors occur in their reading and interpretation due to factors which constitute medical malpractice. For example, a “normal” or “clean” mammogram may not be either when compared to an earlier mammogram. The failure to compare the most recent mammogram to earlier ones, when available, is a serious medical mistake. What may appear to be normal may actually be quite suspicious when compared to what was there (or not there) before.
The experience of the radiologist or physician interpreting the mammogram is a critical factor. A young resident at a municipal clinic, who examines hundreds of economically disadvantaged women each day, may fail to detect a small yet significant abnormality while a Board Certified radiologist or oncologist at a major private hospital specializing in cancer treatment may have no difficulty at all in recognizing the existence of a condition that requires further investigation.
Another situation that may be malpractice occurs when a doctor fails to refer a patient to an appropriate specialist at the moment he or she suspects a medical condition exists which is outside of his or her area of expertise. Attempting to make a diagnosis which is beyond the particular physician’s qualifications is not as far-fetched as it sounds. There have been many cases where a doctor has misdiagnosed a condition (as less serious than it actually is) due to a failure to recognize the need for a referral to a specialist.
Opting for the wrong treatment may also provide a basis for a medical malpractice claim. This may occur when a doctor is too conservative in his or her approach to a problem that calls for prompt and aggressive treatment. It also occurs when a doctor has failed to keep abreast of the most recent developments in his or her specialty or has not remained current with respect to the relevant medical literature.
In order for a claim of medical malpractice to be successful, however, any delay or error must have actually caused the person involved to suffer a more serious medical problem or injury than he or she would have suffered had the delay or error not occurred. Many times, the tact taken by a doctor in a malpractice case (through his own expert witness) is to concede the error was made while maintaining that it made no difference to the outcome suffered by the patient. Cancer cases, in particular, are often defended in this way. A jury may be more sympathetic to a doctor who says, “Sure I made a mistake, but this poor soul was as good as dead on the day he first walked into my office and nothing anyone did could have saved him.” It is certainly more believable than denying any mistake was made when the evidence points to the opposite conclusion.
Breast cancer kills approximately 40,000 women in the United States alone each year. The disease is treatable, however, and may be cured or brought into remission by drug therapy, surgery, radiation, or some combination thereof depending on the type and stage of the cancer. As we have indicated, there are many factors which increase the risk of developing breast cancer. While many of these factors are not directly attributable to the negligent actions of third parties, some are. Dangerous drugs and toxic substances as well as certain environmental conditions provide possible bases for personal injury actions by women with breast cancer. In addition, even if the breast cancer involved cannot be attributed to any negligence on the part of a third party, a delay in diagnosing the disease may serve as the basis for a medical malpractice action. Inappropriate or improper medical treatment may also support a malpractice claim.
If you believe that: you have been exposed to any condition or substance that has increased your risk of breast cancer; your breast cancer is the result of the negligence of a third-party; or that a failure to diagnose your breast cancer in a timely fashion or properly treat it once it was diagnosed, please contact Parker & Waichman immediately for a free consultation and case evaluation.
Since our September 2003 Newsletter which dealt with the dangers of Zyprexa, there have been important developments with respect to the drug and the ongoing legal proceedings involving it.
On 9/2/03, the New York Times reported on the study published in the September issue of the journal Pharmacotherapy which revealed the possible link between Zyprexa (and other new anti-psychotics) and the risk of developing pancreatitis. The study also mentioned the discovery of 22 deaths of patients with pancreatitis.
On 9/18/03, The Associated Press reported that the FDA asked the makers of Zyprexa (and 5 other atypical anti-psychotic drugs) to include a warning about a possible link to diabetes.
On 12/16/03, reports were published which suggested Zyprexa may have caused a pulmonary embolism in an otherwise healthy 28-year-old man.
On 1/27/04, Reuters reported on the warnings by four additional medical organizations with respect to the increased risk of diabetes posed by Zyprexa and other atypical anti-psychotic drugs. The statement by the four organizations was published in the February issue of Diabetes Care.
On 2/1/04, The Associated Press followed up on the Reuters report of 1/27/04.
On 3/9/04, Reuters reported that British authorities had found a three-fold increase in the risk of stroke when Zyprexa and the other new atypical anti-psychotic drugs were used to treat behavioral problems in older patients with dementia.
Parker & Waichman has filed several actions (including a class action) in the United States District Court for the Eastern District of New York with respect to Zyprexa. Eli Lilly (the manufacturer) attempted to have the litigation moved to its home town of Indianapolis, Indiana. Other attorneys wanted the cases moved to various other states. After hearing the arguments of the parties, the Multi District Litigation Panel moved all of the cases to Eastern District of New York. Parker & Waichman is honored to be on the Plaintiffs’ Steering Committee for the Zyprexa litigation. Please contact us immediately for a free consultation and case evaluation if you or a loved one may have suffered an injury as the result of taking Zyprexa or any other atypical anti-psychotic drug.