By Clifford Warren Lober, MD, JD, December 01, 2015
It’s a cold and chilly December day when Bryan, returning to his office, gets a call on his cell phone from Kathy, a dermatologist and client. Bryan begins the conversation.
Bryan: Hi, Kathy! It’s great to hear from you. How are you doing?
Kathy: Not well, Bryan. I just received a request for medical records from a patient of mine, Lydia, who had a dysplastic nevus on her back three years ago. Since a biopsy of the lesion revealed only “moderate” cytologic and architectural abnormalities according to the board-certified dermatopathologist who examined the tissue, I decided not to remove it. Unfortunately, another patient of mine who is Lydia’s neighbor had told me that Lydia has since been diagnosed as having an invasive melanoma, reportedly at the site I biopsied, and that she needed extensive surgery. I am concerned that Lydia’s request for medical records may be a precursor to a malpractice suit. Is my fear justified? What should I do?
Bryan: First, we need to get the facts. All we have is the word of her neighbor that the site you biopsied was subsequently the site of a melanoma. Was it the same site? Was it even a melanoma? I have handled quite a few lawsuits concerning melanomas and have learned not to assume anything.
Kathy: For the sake of argument, let’s assume the worst since the neighbor was quite specific in relaying the information.
Bryan: Okay, although I hate to make any assumptions. Let me tell you what a plaintiff’s attorney would focus on. The lesion was clinically suspicious enough that you did a surgical procedure, called a biopsy, to obtain tissue for microscopic examination. The dermatopathologist then told you that there were, in fact, microscopic abnormalities (cytologic and architectural changes) some of which may be seen in melanoma as well as in atypical nevi.
Kathy: Yes, but the dermatopathologist specifically mentioned that there were only “moderate” histologic abnormalities. Does that matter?
Bryan: Absolutely, but a plaintiff’s attorney may point out that there are no uniform, replicable, objective criteria that define what constitutes “mild,” “moderate,” or “severe” cytologic or architectural changes. Different dermatopathologists examining the same sides have not, therefore, always agreed whether a specific atypical lesion was “mildly,” “moderately,” or “severely” atypical.
Kathy: What else might a plaintiff’s attorney mention?
Bryan: In addition to emphasizing that the lesion was clinically suspicious and microscopically abnormal, it may be alleged that a relatively simple, straightforward, inexpensive, in-office surgical procedure would have removed this lesion. A plaintiff’s attorney can play on the sympathy of the jury to award the plaintiff a financial recovery.[pagebreak]
Kathy: Wow! How would we proceed if such arguments were made?
Bryan: We would focus on the standard of care. Would a similarly situated board-certified dermatologist, presented with this lesion and the information provided by the dermatopathologist, have proceeded as you did? If so, it would show you did not breach your duty to the patient. It must be shown that a breach of this duty occurred for a malpractice suit to succeed.
Kathy: That’s great! I know some of the most reputable dermatologists and suspect that these experts will be willing to testify that not excising the lesion was reasonable. Should that settle the matter?
Bryan: Not necessarily. Should a case such as this go before a jury it will be up to the jury to determine which expert(s) to believe and thus determine the standard of care. A highly eloquent, articulate witness or plaintiff’s attorney may be able to sway a jury to believe the plaintiff’s expert witness. Any time an issue is placed before a jury we are to some extent “rolling the dice.”
Kathy: This isn’t sounding good. Does that mean I should remove all atypical nevi in the future?
Bryan: Absolutely not! Again, we need to look at the standard of care to determine which lesions should be removed.
Kathy: I’m not really feeling too comfortable, Bryan.
Bryan: Kathy, we have nothing to go on at this point other than the word of the patient’s neighbor. The only thing that has actually happened is that the patient, who you have not seen in three years, requested a copy of her medical records. I recommend that you send them to her. You will not need to get her to sign a records release since giving the patient a copy of his or her own medical record is permitted under both HIPAA and our state’s privacy law. Remember, don’t alter her medical record in any way since doing so would call your credibility into question and is also a violation of the Board of Medicine’s regulations.
Kathy: Is there anything else I should do?
Bryan: Yes. You should notify your malpractice insurance carrier. You have a duty to notify your carrier in a timely fashion and not doing so could jeopardize their obligation to defend you. Their risk department may make constructive suggestions. Do not have any further conversations concerning Lydia with the neighbor who brought this matter to your attention since that would violate both HIPAA and our state’s privacy laws. Finally, be sure to let me know if you receive any other requests or contacts concerning this matter.
Kathy: Thanks, Bryan!
Consensus statement on managing clinically atypical and dysplastic nevi
The Pigmented Lesion Subcommittee of the Melanoma Prevention Working Group recently published a consensus statement on managing clinically atypical and dysplastic nevi (JAMA Dermatol. 2015;151(2):212-218). The group recommends that:
- Mildly and moderately dysplastic nevi with clear margins do not need to be reexcised.
- Mildly dysplastic nevi biopsied with positive histologic margins without clinical residual pigmentation may be safely observed rather than reexcised.
- Observation may be a reasonable option for management of moderately dysplastic nevi with positive histologic margins without clinically apparent residual pigmentation; however, more data are needed to make definitive recommendations in this clinical scenario.
Further work on how to handle dysplastic nevi with positive margins is being undertaken.
- In all cases, first confirm the facts. Do not assume anything.
- A plaintiff’s attorney may bring up the fact that a dysplastic lesion was clinically suspicious enough to prompt a surgical procedure (biopsy or excision), was histologically not normal, and might have been removed by an in-office procedure. He or she may also play on the sympathy of the judge or jury.
- The ultimate determination of whether a dysplastic nevus should be excised, however, will be determined by the standard of care (see Dermatology World, Legally Speaking, June 2015).
- When a legally adverse situation arises, you have a duty to notify your malpractice carrier in a timely fashion so that you do not jeopardize their obligation to defend you.
Suggested Topics: If you have any suggestions for topics to be discussed in this column, please email them to email@example.com. See the February 2013 issue of Dermatology World for disclaimers.