Cancer in a transplant kidney, is it the doctor’s fault?

May you never be an interesting case.

That’s a cautionary proverb familiar to medical professionals. While it’s bad to get sick, it’s much worse to get sick with something uncommon or unusual. The more fascinating a case is for doctors, the more difficult it is for patients. Difficult to diagnose, difficult to treat, and often difficult to survive.

Kenneth Liew was doubly unfortunate. He was an interesting medical case and an interesting legal case. Now he’s dead and a jury is currently deliberating who, if anyone, is at fault.

Kenneth Liew was really, really unlucky. He was unlucky because he had serious kidney disease that necessitated debilitating dialysis treatments three times each week. He was unlucky because it took 10 years for a matching kidney to be found to give him in transplant. He was unlucky because after he received his kidney and after it was working well, an autopsy revealed that the kidney came from a woman who, though she died of a stroke, had unknowingly had uterine cancer as well. He was unlucky because there is not a single case like his in the whole world, so no one knew the odds that the cancer would be transmitted. He was unlucky because he died of cancer only seven months after receiving the transplant.

Despite being exhorted by her dying husband to forgive the doctor, Mr. Liew’s widow ignored his wishes and sued just about everyone she could think of including the doctor and New York University Medical Center where the transplant occurred. Eight years after Mr. Liew died, the jury has finally received the case.

First and foremost, this case has been a nightmare for Mr. Liew and his family. But secondarily, this case also represents a doctor’s worst nightmare. The doctor, transplant surgeon Thomas Diflo, lost a patient through a freak accident that no one could have known about or predicted and now he’s being blamed. I would feel sympathy for the doctor no matter what, but I am especially saddened because the doctor was one of my classmates in medical school.

Mrs. Liew is sure that somebody is to blame for something and that she deserves $3 million dollars in compensation, but it is not clear who is to blame or what they are to blame for:

· Did anyone know of the donor’s uterine cancer? Both sides agree that no one knew or could have known that the donor had uterine cancer.

· Was the patient informed that the donor had cancer? Both sides agree that the transplant surgeon informed the donor approximately 2 months after the he received the kidney.

· Should the kidney have been removed immediately thereafter? Both sides acknowledge that there was no way to predict the chances of Mr. Liew developing metastatic uterine cancer. There had literally never been a similar case in the history of medicine. Therefore, the doctor left the decision up to the patient, advising him that based upon what is known about transplants and cancer and based upon the fact that uterine cancer does not metastasize to the kidney, the chance that Mr. Liew would develop metastatic uterine cancer was low. Mr. Liew’s widow argues that the doctor should have advised that the kidney be removed immediately.

· Would removal of the kidney have made any difference? It’s unlikely. Whatever was transmitted to Mr. Liew from the donor kidney had already been transmitted.

· What caused Mr. Liew’s death? That’s not clear. Mr. Liew died of cancer, but the metastatic cancer was so poorly differentiated that no one can tell what type of organ it came from originally. It could have been uterine cancer transmitted by the kidney, but it also could have been cancer that developed spontaneously in Mr. Liew.

So if no one could have known about the uterine cancer in advance, if removing the kidney would not have made a difference and if it is not completely clear what kind of cancer killed Mr. Liew, why are Dr. Diflo and NYU being sued?

They are being sued because something bad happened and someone must be blamed. It wasn’t anyone’s fault; no one did anything wrong, but you can’t get any compensation for bad luck. Therefore someone, anyone, must be blamed and must be made to pay.

Amy Tuteur is an obstetrician-gynecologist who blogs at The Skeptical OB.

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