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How Can I Be Sued for Not Having Access to Newer Mole Mapping Systems?

Dermatology TimesDermatology Times, July 2022 (Vol. 43. No. 7)
Volume 43
Issue 7

In this month's Legal Eagle, David J. Goldberg, MD, JD, writes about a difficult legal case involving metastatic melanoma and mole mapping.

Dr Mole has a very successful dermatology practice in a rural Sunbelt community. There are no other dermatologists for hundreds of miles, and the closest academic medical center is 600 miles away.

Cutaneous oncology makes up a significant portion of Mole’s practice. He diagnoses at least 2 melanomas a week, has multiple patients with strong family histories of melanoma, and sees many patients who have had more than 1 melanoma. His customary practice is to perform total body examinations on such high-risk patients twice a year. He has no access to sophisticated photographic techniques or to associated computerized mole mapping techniques.

Recently, one of Mole’s young high-risk patients died from metastatic melanoma. A medical malpractice case is brought on behalf of the deceased patient’s estate. The crux of the suit is that the melanoma had been present for many years. The family submits photographs substantiating that the lesion had been present over an extended period of time and was missed by Mole. Mole, the defendant physician, stipulates that the lesion was present in early photographs but “would have been considered normal by any reasonable dermatologist.”

The deceased patient’s estate brings forth an expert witness who testifies that although the lesion looked quite normal to the casual eye, it may very well have appeared abnormal had it been evaluated by the sophisticated mole mapping methods that are becoming increasingly available.

The expert further testifies that it was Mole’s obligation to provide such diagnostic testing for his high-risk patients. Mole’s defense is that such methods are not available in rural areas and that he should not be held to the same standard as an academic dermatologist practicing in a large city.

Is he correct?

A plaintiff must prove 4 facts to win a medical malpractice case against their dermatologist. They must show that (1) the dermatologist owed the patient a duty of care; (2) the dermatologist breached that duty by failing to meet the reasonable standard of care; (3) the breach of duty caused that plaintiff to sustain an injury; and (4) there were actual damages to the plaintiff.

In the context of a medical malpractice case, a physician-patient relationship is usually enough to establish that a physician owed the patient a duty of care. This relationship exists anytime a physician provides some sort of medically related opinion to an individual, regardless of whether that advice was offered in the physician’s office, a hospital, or even in the movie theater.

However, the determination of whether a physician actually breached that duty typically is not so simple. Establishing that an error resulted in a negative outcome is not enough. What is required is proof that the physician failed to meet the accepted standard of care. Usually, this is defined by the prevailing medical practice and subsequently established by the testimony of an expert witness physician.

In general, but not always, the expert practices within the same field as the defendant physician. The defendant physician must exercise a degree of care that would be expected of a minimally competent physician in the same specialty and under similar circumstances.

Implicit in this definition is the recognition that not all physicians have access to similar facilities and technology. Thus, the applicable standard of care may consider restraints imposed by geographic location and limited economic resources. Also, a dermatologist in solo practice in a rural community (such as Mole) may not necessarily be held to the same standard of care as one practicing in a large academic center in a major metropolitan area.

There is evidence that total body cutaneous photography and specialized mole mapping methods can be helpful in the detection of early malignant change in pigmented nevi. This would be beneficial in identifying new melanomas, particularly for patients at high risk for developing this skin disease.

It might be argued that although it may be reasonable to expect a dermatologist at a specialized city academic center to order whole-body digital photographs taken by a professional photographer with sophisticated computerized imaging systems for his high-risk patients, it may be unreasonable to expect a solo practitioner in a small town who has no access to that technology to obtain such images.

The local-approach rule has been challenged recently by today’s advances in communication and the increased uniformity of medical education throughout the country. This has led to a number of courts ignoring this former “similar community” standard in favor of a more uniformly accepted national standard of care.

Although Mole will argue the similar community standard of care, he may have trouble persuading the jury not to follow what is now the more commonly accepted “national” standard of care.

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