Protect Yourself From Malpractice Claims

Michael Van Scoy-Mosher, MD

Compared with other specialists, medical oncologists are not often the target of malpractice litigation. Even so, they still get sued. In this article, I present some of the important, common issues that I have seen in litigation wherein the oncologist is the defendant. This is based on my 30 years of medical expert experience. Those of us who frequently serve as expert witnesses in the judicial system have learned many lessons from these cases. Such lessons often improve our own medical practice, and aid us in avoiding litigation altogether. Notably, there is virtually no attention paid to these issues either in our training or our educational conferences.

While maintaining a full-time private practice in medical oncology, I have served as an expert for plaintiff and defense attorneys. As such, I have probably reviewed more than 400 cases and testified in more than 100 trials. In the vast majority of these cases, I have been asked to express opinions relevant to causation. Typically, I am asked to render an opinion as to the impact of a purported delay in diagnosis of cancer. However, in a minority of cases, I am asked to opine as to possible negligence in treatment by an oncologist. Such cases are the focus of this report. It should be noted that in order to retain credibility, a medical expert must be willing to work on plaintiff cases, which I have done.

Many cases are generated by less-than-thorough attention to a clinical situation. Some cases relate to misunderstandings and misperceptions on the part of the patient and/or family. Being aware of how patients and families might view us and our decision making can be invaluable in avoiding litigation.

The basic issues of malpractice litigation must be kept in mind when reviewing specific cases. There are three basic and necessary elements to malpractice litigation:

1. There must be a showing that the physician committed an act of negligence—that he or she fell below the standard of care for the “community” of physicians (in this case, other hematologists-oncologists).
2. This act of negligence must be shown to be the cause of damage or harm to the patient.
3. The degree of damages must be assessed and given a dollar value.

All three of these elements must be proven to a reasonable degree of medical certainty or at least be convincing enough to sway a jury or arbitration panel.

Mindset Problems

In my experience, there are five general categories of issues that seem to yield the majority of cases in which the oncologist is the defendant. Below are examples of each general category with comments about what can be learned from each.Oncologists can form an opinion as to the nature of a patient’s diagnosis. Even as time goes by and evidence accumulates that physicians may be mistaken, they continue on an erroneous course, rather than stepping back and rethinking the situation. I was asked to review the following case on behalf of the plaintiff:

A 65-year-old patient had surgery for a low-grade sigmoid cancer. Three years later she was found on CT scan to have a presacral mass with a normal carcinoembryonic antigen result. The oncologist concluded that this was recurrent colon cancer, did not feel the need for an MRI or a biopsy, and began the patient on FOLFOX chemotherapy.

This therapy is continued for about four years, along with CT scans every three months that show no change. Even the radiologists raise doubts about the diagnosis in view of the appearance of the lesion and the lack of change over time. Eventually there is some growth of the lesion and it is resected, with the pathology being that of a nerve sheath tumor.

Conclusion: the damages attributed to this misdiagnosis are the toxicity of the chemotherapy and the emotional damages the patient suffered from being told inaccurately that she had incurable cancer. The initial, erroneous diagnosis without biopsy confirmation was probably below the standard of care, but perhaps defensible. However, continuing the chemotherapy for four years despite no change in CT scans and without having reconsidered the situation was definitely deemed to be negligent.

Chemotherapy Issues

In this case, the oncologist was simply not able to “rethink” his conclusion that this was recurrent cancer. The oncologist settled the case for a significant amount of money.I was asked to review the following case from a defense viewpoint:

A 56-year-old patient was diagnosed with stage III colon cancer and began adjuvant FOLFOX chemotherapy through a chest port. At her first treatment, the port was properly accessed, and there was good blood return noted.

In the midst of her first treatment with oxaliplatinum, she got up to go to the restroom. Soon after, she began to complain of pain, but because there had been good blood return, the infusion was continued. As time went on, the pain worsened, and swelling around the port developed, at which time the infusion was stopped. She had an extravasation of the oxaliplatin, with consequent inflammation and chronic pain.

Conclusion: prior to this case, I did not consider oxaliplatin a potential vesicant (which it is). Furthermore, it was not common practice to recheck for needle placement and good blood return when a patient ambulates during an infusion. It is now clear that such rechecking should be standard. My own practice changed because of this case.

I was asked to look at a similar case, also from a defense viewpoint:

A 58-year-old patient with breast cancer received adjuvant doxorubicin through a peripheral line. Toward the end of the infusion, she complained of pain and it was clear she had extravasation. The infusion was stopped.

Over the next few weeks, her oncologist saw her several times per week, and referred her to the plastic surgery department for debridement. Although she had chronic pain, she recovered fairly well.

Follow-up Issues

Conclusion: at trial, the jury heard from me that that even with good technique, leakage of doxorubicin can occur and is not negligence per se. The jury was very impressed with the thoughtful follow-up care by the oncologist and rendered a defense verdict. I am sure that had the oncologist not been so attentive and concerned with her patient’s injury, there would have been a different verdict.Again from a defense viewpoint, I was asked to look at this case:

A 52-year-old patient was treated for breast cancer, with routine follow-up for three years. She came to an office visit complaining of pain near her left scapula. The oncologist reassured her, but said that if the pain persisted he would order a bone scan. She called six weeks later, and told him the pain was worse. A bone scan was performed, revealing bone metastases. Very angry, she sued for the delayed diagnosis of cancer and because she was not getting routine bone scans in the first place.

Conclusion: people tend to confuse the concept of the benefit of the early diagnosis of cancer with the fact that there is little-to-no benefit to the earlier diagnosis of metastatic cancer. There was direct communication between the defense attorney and the expert for the plaintiff attorney, such that the plaintiff’s expert came to understand the difference between detection of primary and metastatic cancer. Furthermore, he came to understand that there is no standard of care for routine bone scans in this situation. Accordingly, this case eventually was dismissed.

Informed Consent Issues

The litigation itself could probably have been avoided by a more careful explanation to the patient, at her initial visit with pain, of the thinking and judgment that it is reasonable not to get an immediate scan with every complaint. As to follow-up issues, in general it is best to fall back on ASCO/National Comprehensive Cancer Care Network guidelines.From a defense standpoint, I was asked to review this case:

A 78-year-old patient was diagnosed with a T4 transverse colon cancer, which could not be completely resected. After much discussion and multiple consultations, he was treated with radiation and infusional 5-flu-orouracil. He developed severe toxicity, required several surgeries, and eventually died from a series of complications.

Prior to treatment, the patient was carefully informed about possible toxicities. However, his family was not included in these discussions and the suit was brought by his son, who claimed a lack of appropriate informed consent.

Bad Luck

Conclusion: we often have a good relationship with our patients, but this may not extend to the rest of the family. If the patient dies, our best “advocate” is gone and the family, some of whom we may not even know, can form their own opinions about events. In difficult situations it is advisable to include all important family members in therapeutic discussions.From a defense standpoint, I have seen a number of cases that can only be defined by the fact that, simply, very bad luck occurred:

A 67-year-old woman was being evaluated for thrombocytopenia with a bone marrow aspiration and biopsy. Soon after the procedure, she felt very weak and became hypotensive and syncopal. She was immediately sent to the emergency department, where it was found her hemoglobin was below 7 and that she most likely had a puncture of a pelvic artery with the marrow needle. Despite very aggressive measures, she eventually died from this complication.

Conclusion: this case went to trial, with a defense verdict. It was such a rare complication of bone marrow biopsy that no expert could state it was due to negligence. Furthermore, the fact that she was attended to quite promptly was very important to the jury. Even with a very surprising, catastrophic event, the important issue for the oncologist was the later care and concern perceived by the patient and family.