When it comes to the VA, some things never seem to change. The VA has frequently had problems with offering screening tests to its veteran patients. As one might expect, veterans suffer and sometimes die. We are now seeing this pattern repeated with regard to lung cancer screening.
A little bit of history that might provide some context: In the early to mid-90’s it became accepted medical practice that those over 50 should have screening colonoscopies. Such tests can diagnose colon cancer at a stage where it can be treated and cured relatively easily. Like all other healthcare institutions, the VA adopted these guidelines. However, when we first started taking Federal Tort Claims Act (FTCA) malpractices cases in 1999, we saw many cases where this valuable screening test was never even suggested to patients, let alone done. Veterans who should have been treated and cured died of colon cancer. In our first ten years of handling VA medical malpractice claims, these preventable death scenarios were commonplace, sadly. Eventually, we began to see fewer such cases. Now, claims involving a failure to recommend or perform a colonoscopy are rare.
What has become increasingly common is the VA not offering lung cancer screening. Lung cancer is a common disease. If it is caught early, it is often treatable. Cures can happen. If it progresses, it is often a death sentence. Reliable screening has been recommended for almost seven years now. The U.S. Preventive Services Task Force issued lung cancer screening recommendations on December 31, 2013. These recommendations called for annual low-dose CT scan lung cancer screening for patients who are 55-74 years old, are current or former smokers (who quit less than 15 years ago) and smoked at least 30-pack years. Subsequently, these recommendations were adopted by the American Cancer Society, the American Lung Association, the American Association for Thoracic Surgery, the National Comprehensive Cancer Care Network, and numerous other organizations. According to the Department of Veterans Affairs, it recommends low-dose CT scan lung cancer screening for this same group of patients (although it adjusted the age range to 55-80 years old).
We are frequently seeing situations where veterans who are clearly in the target (high risk) group for screening CT never even knew it was an option. The medical records might mention getting a colonoscopy, but there is no mention of lung cancer screening. Any, yes, we have seen veterans dying after being diagnosed with advanced stage lung cancer. For years we saw this with colon cancer screening. It’s déjà vu all over again – to use that great Yogi Berra line.
Just as it was when VA doctors were lax about recommending colonoscopies, the failure to recommend low dose CT lung cancer screening is a breach of the standard of care. It is negligence on the part of the healthcare provider.
In medical malpractice cases, simply proving negligence is not enough. We also have to prove that that negligence caused some harm to the patient. In cancer cases, that proof of causation can be tricky. While it is common wisdom that an earlier diagnosis of cancer is better, showing how much “better” can be difficult. Enough time has to have elapsed such that the patient’s prognosis changed. For example, with a six- to nine-month delay in diagnosing lung cancer, proving that causal link would typically be hard to do. Remember, these cases require expert witnesses, doctors who diagnose and treat cancers. Many such doctors might tell us that they cannot say “to a reasonable degree of medical probability” that a six- to nine-month delay changed the patient’s treatment options or expected outcome. A two-year delay, however, could make a huge difference.
Many lawyers, even ones with extensive medical malpractice experience, are wary of cancer cases. It is not hard to understand. These cases often involve complex issues of medicine. To say the medical facts of such matters can be esoteric is a huge understatement. We are comfortable with cancer cases. Both when we were defense lawyers and also representing patients, we have handled scores of cancer cases for more than 30 years. We are not perfect, but we are quite good at identifying and prosecuting cases involving delays in the diagnosis and treatment of many forms of cancer.
With regard to lung cancer screening, I hope the VA soon figures out what it needs to be doing with these patients. Past experience does not make me optimistic, however.