Malpractice and Genetic Testing

Courts are ruling in favor of plaintiffs in malpractice cases claiming that physicians are negligent in their use and application of genetic testing methods, according to an abstract presented at the 2011 annual meeting of the American Society of Clinical Oncology.

Researchers with the College of Law at Arizona State University in Tempe and the Mayo Medical School in Rochester, Minnesota, identified factors for which physicians have been held liable:

  • Failing to take an adequate family history
  • Not recommending the appropriate testing
  • Failing to refer to a geneticist or genetic counselor
  • Misinterpretation of test results
  • Not interpreting results in a timely manner
  • Failing to recommend the appropriate risk mitigation strategies
  • Failing to disclose a patient’s test results to at-risk family members.

Although the number of cases relating to hereditary cancer remains low, just 3 of more than 50 total cases identified through Westlaw, the researchers believe that the “causes of action” ruled on by the courts can be applied in cases involving hereditary cancer.

These actions are important. With responsibilities related to genetic testing continually evolving, physicians’ legal position remains dependent on the courts’ rulings. And with genetic technologies being adopted into clinical practice slower than the public realizes, their role as jurors can impact legal outcomes negatively for members of the healthcare team, especially physicians. The researchers concluded that, with the field of genetics continuing to grow along with the public’s expectations for genetic testing, the number of lawsuits filed against physicians is likely to increase.

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