Do Gender Differences in Heart Disease Reset the Standard of Care?

Gwen Mayes, Esq


March 16, 2005

All areas encompassing the cardiologist's practice of medicine provide fertile ground for potential malpractice claims. Frequent claims include failing to take a proper medical history, failing to correctly interpret noninvasive and invasive diagnostic procedures, and failing to provide proper informed consent for surgical procedures.

But the most litigated malpractice issue involving cardiologists is the failure to diagnose an impending myocardial infarction (MI).[1] The problem is that an impending MI is not easily diagnosed, and a fair portion of the patient population will present with mixed or atypical symptoms. Much attention has been paid in recent years to gender differences in heart disease in an effort to not only re-educate health professionals but as a way of educating the public that heart disease is the leading cause of death among women.[2] One in 5 women has some form of cardiovascular disease (CVD), including heart disease, heart attack, stroke, heart failure, high blood pressure, and cardiac arrest.[3]

After participating in numerous events for the American Heart Association during February, it's obvious to me that considerable attention is being paid to heart disease in women. Are the differences real? Are they perceived? Or are they so laced with cultural and social perspectives that parsing out what is science and what is traditional practice is blurred?

In 2001, the Institutes of Medicine, in its landmark study, "Exploring the Biological Contributions to Human Health: Does Sex Matter?," reviewed the status of gender differences and concluded that "it matters in ways we did not expect . . . in ways we can only begin to comprehend."[4] Contributing to these differences is a noted lack of physician awareness of the unique patterns of CVD in women. Physicians' lack of awareness of CVD in women may be attributed to many factors: women have been excluded from CVD clinical trials, resulting in unclear diagnostic criteria and treatment for women with CVD; physicians may not recognize women's "atypical" symptoms of CVD; and physicians may be more likely to minimize CVD symptoms in women and attribute them to emotional issues.[5]

"About 20 percent of women have atypical or unusual symptoms of heart attack," says Marianne J. Legato, MD, FACP, an internationally known academic physician, author, and specialist in women's health. "But women don't want to be told they have heart disease. When they come into the doctor's office they start off by saying, 'this is probably all in my head, it's probably nothing' -- and with that kind of opening, heart disease is seldom what's thought of first. It's as if they want the doctor to tell them, 'go home, darling, you're OK.'" (Personal communication, Dr. Marianne J. Legato, February 28, 2005.)

But what's not OK with Dr. Legato, Professor of Clinical Medicine at Columbia University College of Physicians & Surgeons and the founder and director of the Partnership for Gender-Specific Medicine at Columbia, is the very real harm that can be done when women are misdiagnosed for heart disease because of a lack of awareness of these differences. "Women and men experience this illness differently. If you have a woman come into your office complaining of shortness of breath, with a excruciating pain just under her breast bone that is moving up to her back and she's sweating and telling you something isn't right, and you don't know that 20% of the women present this way when they're having a heart attack, that's a medical error." According to Legato, the science is clear. In the area of CVD, women are not small men.

With the growth of gender-medicine and the research on importance differences in CVD between men and women, does this change the physician's standard of care for diagnosis and treatment of women? "Yes, most definitely," says Legato. "It's now the standard of care to know these differences. We have to pay attention to women, and no longer can we call these atypical feelings 'fuzzy feelings.' It's a very disrespectful term."

A medical malpractice action based on the misdiagnosis or improper treatment of a patient's heart condition or disease may be successful if the plaintiff can show that the physician failed to conform to the applicable standard of care in the diagnosis and/or treatment of the patient and that failure was the proximate cause of the loss or injury suffered by the patient.[6] Thus, at the root of any malpractice claim is that the defendant (ie, the physician) deviated from the standard of care.

The degree of skill, care, and knowledge a physician or surgeon is expected to exercise in the diagnosis and treatment of a patient may be specified by state statute.[6] State statutes vary considerably. Some define standard of care on the basis of the locality rule -- eg, the duty of physician and surgeon is to exercise the care, skill, and learning expected of or ordinarily employed by the average or competent practitioner in the same community or locality as that of the defendant. In many jurisdictions, the locality rule has been abandoned because of the widespread availability of continuing medical education via telecommunication sources, ease of travel to medical conferences, and availability of published medical literature. Other states apply a "reasonableness" comparison -- eg, the definition of standard of care is not limited solely to the practice or custom of a particular locality, a similar locality, or a geographic area, but should include the circumstances involved, the type of injury, and the availability of medical facilities. Under this approach, a plaintiff must commonly prove that a physician failed to exercise the degree of skill usually exercised by a similarly trained and skill physician and that the actions were unreasonable.[6]

Because of the specialized nature of cardiology and the known uncertainty in the diagnosis and treatment of CVD, cardiologists are held to the standard of care applicable to their particular profession. The plaintiff must generally establish the standard of care that is to be applied by means of expert testimony, unless the lack of skill or care of the physician is grossly apparent and within the comprehension of the lay public.

Case law is replete with negligence cases in which a symptom or sign in the early stages of a heart attack was missed or dismissed as inconsequential. Presented with such potential anomalies, even a cardiologist seeing a patient with chest pain is often in a quandary as to how best to proceed. (In Keogan v. Holy Family Hospital , 95 Wash. 2d 306, 622 P.2d 1246 [1980] there was medical expert testimony that 250 noncardiac conditions can cause chest pain.) Gender differences add another element of uncertainty.

Case law in this area is as variable as the presenting patient's symptoms. It seems to be the general rule that if chest pain does not exist, or if the patient's complaints are inconsistent with coronary artery disease and sufficiently explained by other conditions, and if there are no significant risk factors for coronary artery disease (eg, age, family history, or cigarette use), then further diagnostic testing or treatment will usually not be required to support the standard of care.[1] Even when chest pain exists, a cardiologist will probably be exonerated from liability if the chest pain is clearly atypical or if a sufficient opportunity to examine the patient does not exist.[1]

Although it is outside the scope of this article to thoroughly review even a small percentage of cases involving a claim of negligence against a cardiologist for failure to diagnose an impending MI, outcomes are generally of 2 types. While highly fact-specific, negligence cases tend to show that courts will either be "pro-plaintiff," meaning they will expect the physician to suspect cardiac disease liberally and to pursue vigorous diagnostic testing on a frequent basis, or they will be "pro-cardiologist" and find the patient's symptoms and initial examination too speculative to require admission and a battery of aggressive testing.[1]

A cursory review of the law in this area does not, to date, seem to turn on the gender differences in the diagnosis and treatment of CVD in women as the sole distinguishing point of liability. But it's worth noting that differences are increasingly well documented, and the public's growing awareness of these differences may impact the applicable standard of care.

For cardiologists practicing exclusively in this area, that time has already come. "I have been asked "innumerable times to serve as an expert witness in malpractice cases where women have died due to a failure to diagnose a MI," says Legato. The standard of care must be to know the differences between men and women in their presentation and the aggressiveness with which you treat them. "Negligence may be avoided if you are reasonably informed."


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