A fifty-eight year old man enters the Emergency Department with signs and symptoms of intestinal obstruction. He has a large colon cancer at the hepatic flexure. At surgery he has several liver metastases. After two years of chemotherapy he dies of metastatic disease. His estate sues his primary care physician for failing to recommend colo-rectal cancer screening. Do they have a case?

Routine screening for cancer as mandated by guidelines promulgated by august bodies, e.g., the American Cancer Society, has become the national standard of care. The actual guidelines vary among groups (ACS, American College of Surgeons, American College of Physicians) but all agree that something needs to be done to every adult starting at age fifty unless he or she has special risk factors, for which screening should begin earlier. The guidelines have also evolved through time; however, starting in about 2000 there was consensus on the need for all adults to be screened. Data showing an enhanced outcome for screened asymptomatic individuals are robust.

The recommendations for breast, cervix and colon cancer are strong; for prostate cancer they are relatively weak in the absence of convincing data that screening saves lives. There are no guidelines for lung cancer screening in the absence of a consensus about efficacy. With emerging data about CT screening for high-risk individuals, that standard may be evolving. There are no other generally recognized screening guidelines for the average-risk person.

Impact of colorectal screening with fecal occult blood on mortality.

Impact of colorectal screening with fecal occult blood on mortality.

Certain inherited conditions require a different standard. The several inherited colon cancer syndromes (e.g., HNPCC, FAP, Lynch Syndrome) mandate much earlier screening and total colectomy in some cases. The inherited breast/ovarian syndromes (BRCA 1 and 2) require a much more rigorous approach as well. Other much rarer conditions (e.g., Von-Hippel Lindau Syndrome) have their own recommendations.

From a litigation perspectrive it is clear by 2011 that failure to offer colorectal or breast cancer screening is negligent. The same cannot be said for the much rarer syndromes. Prostate cancer screening is a gray area; current guidelines suggest, but do not insist, on it.

With respect to proximate cause it is very difficult to defend an eight-year delay in the case above. Furthermore, for most ot the eight years this man would have had a pre-malignant polyp which would have been removed without sequelae when found. Would colonoscopy at age 50 have shown the polyp? Perhaps, but in any event annual stool exams for occult blood (part of the guidelines) would have turned positive years before he came to medical attention.